Exhibit 1.1
METLIFE CAPITAL EQUIPMENT LOAN TRUST 1997-A
6.85% CLASS A NOTES
METLIFE CAPITAL FUNDING CORP. III
CLASS A NOTE UNDERWRITING AGREEMENT
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May 22, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
000 Xxxxx Xxxxxx
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. MetLife Capital Funding Corp. III, a Delaware
corporation (the "Transferor"), proposes to cause MetLife Capital Equipment Loan
Trust 1997-A (the "Trust") to issue and sell $304,203,000 aggregate principal
amount of 6.85% Class A Notes (the "Class A Notes") to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Underwriter"). The assets of the Trust will
include, among other things, a pool of fixed rate commercial loan contracts
and/or equipment finance lease contracts (the "Receivables") secured by one or
more pieces of commercial and/or industrial equipment that were directly or
indirectly acquired with the proceeds of, or leased pursuant to, such contracts
(the "Financed Equipment"). The Receivables will be transferred to the Trust by
the Transferor. The Receivables will be serviced for the Trust by MetLife
Capital Corporation, a Delaware corporation (the "Servicer" or "MCC"). The
Class A Notes will be issued pursuant to the Indenture to be dated as of May 1
1997 (as amended and supplemented from time to time, the "Indenture"), between
the Trust and The Chase Manhattan Bank (the "Indenture Trustee").
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Transfer and Servicing Agreement to be dated as
of May 1, 1997 (as amended and supplemented from time to time, the "Transfer and
Servicing Agreement"), among the Trust, the Transferor and the Servicer or, if
not defined therein, in the Indenture or the Trust Agreement to be dated as of
May 1, 1997 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Transferor and Wilmington Trust Company, a Delaware
banking corporation as owner trustee under the Trust Agreement (the "Owner
Trustee").
2. Representations and Warranties of MCC and the Transferor. MCC
and the Transferor represent and warrant to and agree with the Underwriter that:
(a) The Transferor meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-23405) on such Form, including a prospectus and a form of
prospectus supplement, for registration under the Act of the offering and sale
of the Class A Notes. The Transferor may have filed one or more amendments
thereto, each of which amendments has previously been furnished to the
Underwriter. The Transferor will also file with the Commission a prospectus
supplement in accordance with Rule 424(b) under the Act. The Transferor has
included in the Registration Statement, as amended at the Effective Date (as
hereinafter defined), all information required by the Act and the rules
thereunder to be included in the Prospectus with respect to the Class A Notes
and the offering thereof. As filed, the registration statement as amended, the
form of prospectus supplement, and any prospectuses or prospectus supplements
filed pursuant to Rule 424(b) under the Act relating to the Class A Notes shall,
except to the extent that the Underwriter shall agree in writing to a
modification, be in all substantive respects in the form furnished to the
Underwriter prior to the Execution Time (as hereinafter defined) or, to the
extent not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the latest
preliminary prospectus supplement which has previously been furnished to the
Underwriter) as the Transferor has advised the Underwriter, prior to the
Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time", means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time
and including the exhibits thereto and any material incorporated by reference
therein (including any Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets (as defined in Section 4(b) of this Agreement)
filed on Form 8-K), is hereinafter referred to as the "Registration Statement"
and any prospectus supplement (the "Prospectus Supplement") relating to the
Class A Notes, as filed with the Commission pursuant to and in accordance with
Rule 424(b) under the Act is, together with the prospectus filed as part of the
Registration Statement (such prospectus, in the form it appears in the
Registration Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424(b) being hereinafter referred to as the "Basic
Prospectus"), hereinafter referred to as the "Prospectus". "Preliminary
Prospectus" means any preliminary prospectus to the Prospectus
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which describes the Class A Notes and the offering thereof and which is used
prior to the filing of the Prospectus. "Rule 424" refers to such rule under the
Act. Any reference herein to the Registration Statement, the Prospectus or any
Prospectus Supplement 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 Effective Date of the Registration Statement or the
issue date of the Prospectus or any Prospectus Supplement, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Prospectus or any Prospectus
Supplement shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of the Prospectus or any Prospectus Supplement, as the case
may be, deemed to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first filed and
on the Closing Date (as defined below), the Prospectus and any Prospectus
Supplement did or will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the respective rules and regulations
of the Commission thereunder (the "Rules and Regulations") and of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). On the Effective
Date, the Registration Statement did not and 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, on the Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus, together with any Prospectus
Supplement, did not or will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that MCC and the Transferor make no
representation or warranty as to the information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in conformity
with information furnished in writing to MCC or the Transferor by the
Underwriter specifically for use in connection with preparation of the
Registration Statement or the Prospectus. As of the Closing Date, the
Transferor's representations and warranties in the Transfer and Servicing
Agreement and the Trust Agreement will be true and correct.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial
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condition, stockholders' equity, results of operations, regulatory status or
business prospects of the Transferor or MCC, and (ii) neither the Transferor nor
MCC has entered into any transaction or agreement (whether or not in the
ordinary course of business) material to it that, in either case, would
reasonably be expected to materially adversely affect the interests of the
holders of the Class A Notes, other than as set forth or contemplated in the
Prospectus.
(d) The computer tape of the Initial Receivables created as of May 1,
1997, and made available to the Underwriter by the Servicer, was complete and
accurate as of the date thereof and includes a description of the Initial
Receivables that are described in Schedule A to the Transfer and Servicing
Agreement.
(e) Each of the Transferor and MCC is duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is qualified to transact business in and is in
good standing under the laws of each state in which the failure to so qualify
would render any Receivable unenforceable that would otherwise be enforceable by
the Transferor or the Owner Trustee, and has full power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted.
(f) This Agreement has been duly authorized, executed and delivered
by each of the Transferor and MCC.
(g) On the date of this Agreement and on the Closing Date, the
representations and warranties of MCC and the Transferor in the Contribution and
Sale Agreement and the Transfer and Servicing Agreement with respect to the
Receivables will be true and correct.
(h) MCC's assignment and delivery of the Receivables, to the
Transferor as of the Closing Date will vest in the Transferor all of MCC's
right, title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(i) The Transferor's assignment and delivery of the Receivables to
the Trust as of the Closing Date will vest in the Trust either (x) all of the
Transferor's right, title and interest therein or (y) a first priority perfected
security interest therein, in each case, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(j) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
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3. Purchase, Sale, and Delivery of the Class A Notes. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Transferor agrees to cause the
Trust to sell to the Underwriter, and the Underwriter agrees to purchase from
the Trust, at a purchase price of 99.7157792% of the principal amount thereof,
$304,203,000 in principal amount of the Class A Notes. Delivery of and payment
for the Class A Notes shall be made at the office of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on May 30, 1997 (the
"Closing Date"). Delivery of the Class A Notes shall be made against payment of
the purchase price in immediately available funds drawn to the order of the
Transferor. The Class A Notes to be so delivered will be represented by one or
more Class A Notes in fully registered, certificated form.
4. Offering by Underwriter.(a) It is understood that the Underwriter
proposes to offer the Class A Notes for sale to the public (which may include
selected dealers), as set forth in the Prospectus.
(b) The Underwriter may prepare and provide to prospective investors
certain Computational Materials, ABS Term Sheets, Structural Term Sheets and
Collateral Term Sheets in connection with its offering of the Class A Notes,
subject to the following conditions:
(i) The Underwriter shall have complied with the requirements of
the no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in the response to the request of the Public
Securities Association, dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter") and the requirements of the no-action letter, dated February 17, 1995,
issued by the Commission to the Public Securities Association (the "PSA Letter,"
and together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have
the meaning given such term in the No-Action Letters, but shall include only
those Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of the Underwriter. For purposes
hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
shall have the meanings given such terms in the PSA Letter but shall include
only those ABS Term Sheets, Structural Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by or at the
direction of the Underwriter.
(iii) All Computational Materials, ABS Term Sheets, Structural
Term Sheets and Collateral Term Sheets provided to prospective investors that
are required to be filed pursuant to the No-Action Letters shall bear a legend
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substantially in the form attached hereto as Exhibit A. The Transferor shall
have the right to require specific legends or notations to appear on any
Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets, the right to require changes regarding the use of terminology and
the right to determine the types of information appearing therein.
Notwithstanding the foregoing, this subsection (iii) will be satisfied if all
Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets referred to herein bear a legend in a form previously approved in
writing by the Transferor.
(iv) The Underwriter shall have provided the Transferor with
representative forms of all Computational Materials, ABS Term Sheets, Structural
Term Sheets and Collateral Term Sheets prior to their first use, to the extent
such forms have not previously been approved by the Transferor for use by the
Underwriter. The Underwriter shall have provided to the Transferor, for filing
on Form 8-K as provided in Section 5(n), copies (in such format as required by
the Transferor) of all Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets that are required to be filed with the
Commission pursuant to the No-Action Letters. The Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials, ABS Term Sheets,
Structural Term Sheets and Collateral Term Sheets described in this subsection
(iv) shall have been provided to the Transferor not later than 10:00 a.m. (New
York City time) not less than one business day before filing thereof is required
to be made with the Commission pursuant to the No-Action Letters. The
Underwriter shall not have provided to any investor or prospective investor in
the Class A Notes any Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets on or after the day on which Computational
Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets
are required to be provided to the Transferor pursuant to this subsection (iv)
(other than copies of Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets previously submitted to the Transferor in
accordance with this subsection (iv) for filing pursuant to Section 5(n)),
unless such Computational Materials, ABS Term Sheets, Structural Term Sheets and
Collateral Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor.
(v) All information included in the Computational Materials, ABS
Term Sheets, Structural Term Sheets and Collateral Term Sheets shall have been
generated based on substantially the same methodology and assumptions that are
used to generate the information in the Prospectus as set forth therein;
provided that the Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets may have included information based on
alternative methodologies or assumptions if specified therein. If any
Computational Materials, ABS Term Sheets,
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Structural Term Sheets and Collateral Term Sheets that are required to be filed
were based on assumptions with respect to the Receivables that differ from the
final Receivables information in any material respect or on Class A Note
structuring terms that were revised in any material respect prior to the
printing of the Prospectus, the Underwriter shall have prepared revised
Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets, as the case may be, based on the final Receivables information and
structuring assumptions, shall have circulated such revised Computational
Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets to
all recipients of the preliminary versions thereof that indicated orally to the
Underwriter they would purchase all or any portion of the Class A Notes, and
shall have included such revised Computational Materials, ABS Term Sheets,
Structural Term Sheets and Collateral Term Sheets (marked, "as revised") in the
materials delivered to the Transferor pursuant to subsection (iv) above.
(vi) The Transferor shall not be obligated to file any
Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets that have been determined to contain any material error or omission,
provided that, at the request of the Underwriter, the Transferor will file
Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets that contain a material error or omission if clearly marked
"superseded by materials dated __________" and accompanied by corrected ABS Term
Sheets that are marked, "supersedes material previously dated __________, as
corrected." If, within the period during which the Prospectus relating to the
Class A Notes is required to be delivered under the Act, any Computational
Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets
are determined, in the reasonable judgment of the Transferor or the Underwriter,
to contain a material error or omission, the Underwriter shall prepare a
corrected version of such Computational Materials, ABS Term Sheets, Structural
Term Sheets and Collateral Term Sheets, shall circulate such corrected
Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets, as the case may be, to all recipients of the prior versions thereof
that either indicated orally to the Underwriter they would purchase all or any
portion of the Class A Notes, or actually purchased all or any portion thereof,
and shall deliver copies of such corrected Computational Materials, ABS Term
Sheets, Structural Term Sheets and Collateral Term Sheets (marked, "as
corrected") to the Transferor for filing with the Commission in a subsequent
Form 8-K submission (subject to the Transferor's obtaining an accountant's
comfort letter in respect of such corrected Computational Materials, ABS Term
Sheets, Structural Term Sheets and Collateral Term Sheets, which shall be at the
expense of the Transferor).
(vii) The Underwriter shall be deemed to have represented as of
the Closing Date, that, except for Computational Materials, ABS Term Sheets,
Structural Term Sheets
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and Collateral Term Sheets provided to the Transferor pursuant to subsection
(iv) above, the Underwriter did not provide any prospective investors with any
information in written or electronic form in connection with the offering of the
Class A Notes that is required to be filed with the Commission in accordance
with the No-Action Letters.
(viii) In the event of any delay in the delivery by the
Underwriter to the Transferor of all Computational Materials, ABS Term Sheets,
Structural Term Sheets and Collateral Term Sheets required to be delivered in
accordance with subsection (iv) above, or in the delivery of the accountant's
comfort letter in respect thereof pursuant to Section 5(n), the Transferor shall
have the right to delay the release of the Prospectus to investors or to the
Underwriter, to delay the Closing Date and to take other appropriate actions in
each case as necessary in order to allow the Transferor to comply with its
agreement set forth in Section 5(n) to file the Computational Materials, ABS
Term Sheets, Structural Term Sheets and Collateral Term Sheets by the time
specified therein.
5. Covenants of MCC and the Transferor. MCC and the Transferor
covenant and agree with the Underwriter that:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount of
Class A Notes covered thereby and the terms thereof not otherwise specified in
the Basic Prospectus, the price at which such Class A Notes are to be purchased
by the Underwriter, the initial public offering price, the selling concessions
and allowances, and such other information as the Transferor deems appropriate
and shall furnish a copy to the Underwriter in accordance with Section 5(b) of
this Agreement. The Transferor will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing that complies with all applicable
provisions of Rule 424(b). The Transferor will advise the Underwriter promptly
of any such filing pursuant to Rule 424(b).
(b) Prior to the termination of the offering of the Class A Notes,
the Transferor will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Transferor has furnished the Underwriter
with a copy for its review prior to filing and will not file any such proposed
amendment or supplement to which the Underwriter reasonably objects. Subject to
the foregoing sentence, if filing of the Prospectus is otherwise required under
Rule 424(b), the Transferor will file the Prospectus, properly completed, and
any supplement thereto, with the Commission pursuant to and in accordance with
the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Underwriter of such timely filing.
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(c) The Transferor will advise the Underwriter promptly of any
proposal to amend or supplement the Registration Statement as filed, or the
Prospectus, and will not effect such amendment or supplement without the
Underwriter's consent, which consent will not unreasonably be withheld; the
Transferor will also advise the Underwriter promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information; and the Transferor will also
advise the Underwriter promptly of any amendment or supplement to the
Registration Statement or the Prospectus and of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the institution or threat of any proceeding for that purpose, and the Transferor
will use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting of any issued stop order.
(d) If, at any time when a prospectus relating to the Class A Notes
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective Rules and Regulations thereunder, the
Transferor promptly will notify the Underwriter and will prepare and file, or
cause to be prepared and filed, with the Commission, subject to the first
sentence of paragraph (b) of this Section 5, an amendment or supplement that
will correct such statement or omission, or effect such compliance. Any such
filing shall not operate as a waiver or limitation on any right of the
Underwriter hereunder.
(e) As soon as practicable, but not later than fourteen months after
the original effective date of the Registration Statement, the Transferor will
cause the Trust to make generally available to Class A Noteholders an earnings
statement of the Trust covering a period of at least twelve months beginning
after the Effective Date of the Registration Statement that will satisfy the
provisions of Section 11(a) of the Act.
(f) The Transferor will furnish to the Underwriter copies of the
Registration Statement (one of which will be conformed and will include all
exhibits), each related preliminary prospectus or prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Underwriter requests.
(g) The Transferor will assist the Underwriter in arranging for the
qualification of the Class A Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions in the United
States, or as necessary to
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qualify for the Euroclear System or Cedel Bank, societe anonyme, as the
Underwriter designates and will continue to assist the Underwriter in
maintaining such qualifications in effect so long as required for the
distribution; provided, however, that neither the Transferor nor MCC shall be
required to qualify to do business in any jurisdiction where it is now not
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to service
of process.
(h) For a period from the date of this Agreement until the retirement
of the Class A Notes, or until such time as the Underwriter shall cease to
maintain a secondary market in the Class A Notes, whichever occurs first, the
Transferor will deliver to the Underwriter the annual statements of compliance
and the annual independent certified public accountants' reports furnished to
the Owner Trustee or the Indenture Trustee pursuant to the Transfer and
Servicing Agreement, as soon as such statements and reports are furnished to the
Owner Trustee or the Indenture Trustee.
(i) So long as any of the Class A Notes are outstanding, the
Transferor will furnish to the Underwriter (i) as soon as practicable after the
end of the fiscal year all documents required to be distributed to Class A
Noteholders or filed with the Commission pursuant to the Exchange Act or any
order of the Commission thereunder and (ii) from time to time, any other
information concerning the Transferor filed with any government or regulatory
authority which is otherwise publicly available, as the Underwriter may
reasonably request.
(j) On or before the Closing Date, the Transferor shall cause the
computer records of the Transferor and the Servicer relating to the Receivables
to be marked to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date neither the Transferor nor the Servicer shall take
any action inconsistent with the Trust's ownership of such Receivables, other
than as permitted by the Transfer and Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to
the Class A Notes by the rating agency or agencies that initially rate the Class
A Notes is conditional upon the furnishing of documents or the taking of any
other actions by the Transferor, the Transferor shall furnish such documents and
take any such other actions.
(l) For the period beginning on the date of this Agreement and ending
seven days after the Closing Date, unless waived by the Underwriter, none of the
Transferor, MCC or any trust originated, directly or indirectly, by the
Transferor or MCC will offer to sell or sell notes (other than the Class A
Notes) evidencing an ownership interest in, receivables generated pursuant to
fixed rate commercial loan and lease contracts secured by equipment similar to
the Financed Equipment.
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(m) The Transferor and MCC each will deliver to the Underwriter, all
opinions, certificates and other documents or information delivered to the Owner
Trustee and the Indenture Trustee at the time such opinions, certificates and
other documents or information are delivered to the Owner Trustee or the
Indenture Trustee pursuant to the Transfer and Servicing Agreement and the
Contribution and Sale Agreement with respect to perfection and priority of MCC's
interest in the Receivables.
(n) The Transferor will file with the Commission a report on Form 8-K
setting forth all Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets provided to the Transferor by the Underwriter
and identified by it as such within the time period allotted for such filing
pursuant to the No-Action Letters. The Transferor shall file any corrected ABS
Term Sheets, Structural Term Sheets or Collateral Term Sheets described in
Subsection 4(b)(vi) as soon as practicable following receipt thereof.
6. Payment of Expenses. The Transferor will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the Class A Notes to the Underwriter, (iii) the fees and disbursements of MCC's
and the Transferor's counsel and accountants, (iv) the qualification of the
Class A Notes under securities laws in accordance with the provisions of Section
5(g), including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any blue sky or
legal investment survey, (v) the printing and delivery to the Underwriter of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the Preliminary Prospectus and of each amendment or supplement
thereto, (vi) the printing and delivery to the Underwriter of copies of any blue
sky or legal investment survey prepared in connection with the Class A Notes,
(vii) any fees charged by rating agencies for the rating of the Class A Notes,
(viii) the fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc. and (ix) the fees and
expenses of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP.
7. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase and pay for the Class A Notes will be
subject to the accuracy of the representations and warranties on the part of MCC
and the Transferor herein, to the accuracy of the statements of officers of MCC
and the Transferor made pursuant to the provisions hereof, to the performance by
MCC and the Transferor of its obligations hereunder and to the following
additional conditions precedent:
(a) The Registration Statement shall have become effective prior to
the Execution Time, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings
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for that purpose shall have been instituted or, to the knowledge of the
Transferor or the Underwriter, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(b) The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the Rules and Regulations
and Section 5(a) hereof.
(c) On or prior to the date of this Agreement and on or prior to the
Closing Date, the Underwriter shall have received a letter or letters, dated as
of the date of this Agreement and as of the Closing Date, respectively, of
Deloitte & Touche LLP, independent public accountants, substantially in the form
of the drafts to which the Underwriter has previously agreed and otherwise in
form and substance satisfactory to the Underwriter and its counsel.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Transferor or the Servicer which, in the judgment of the
Underwriter, materially impairs the investment quality of the Class A Notes or
makes it impractical or inadvisable to market the Class A Notes; (ii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any suspension of trading of any securities of MCC on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriter, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Class
A Notes.
(e) The Underwriter shall have received opinions of Xxxx Xxxx, Senior
Vice President and General Counsel of MCC and Xxxxx Xxxxxx Xxxxxxxx LLP, counsel
to MCC and the Transferor and such other counsel acceptable to the Underwriter,
the Owner Trustee and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Underwriter and its counsel,
substantially to the effect that:
(i) MCC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own its properties and conduct its
business, as presently owned and conducted by it, and to enter into and
perform its obligations under the Class A Note Underwriting Agreement, the
Administration Agreement, the Contribution and Sale Agreement and the
Transfer and Servicing Agreement
12
and had at all times, and now has, the power, authority and legal right to
acquire, own and transfer the Receivables.
(ii) The Transferor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and conduct
its business, as presently owned and conducted by it, and to enter into and
perform its obligations under the Class A Note Underwriting Agreement, the
Contribution and Sale Agreement, the Trust Agreement and the Transfer and
Servicing Agreement and had at all times, and now has, the power, authority
and legal right to acquire, own and transfer the Receivables.
(iii) MCC is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render any Receivable unenforceable by the Transferor, the Owner Trustee or
the Indenture Trustee, except as may be required under state securities or
Blue Sky laws of various jurisdictions.
(iv) The Transferor is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would have a material adverse effect on the Receivables as a
whole, except as may be required under state securities or Blue Sky laws of
various jurisdictions.
(v) The direction by the Transferor to the Owner Trustee to
authenticate the Class A Notes has been duly authorized by the Transferor
and, when the Class A Notes have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement and
delivered and paid for pursuant to this Class A Note Underwriting
Agreement, will be legally issued, fully paid and nonassessable obligations
of the Trust.
(vi) The direction by the Transferor to the Indenture Trustee to
authenticate the Class A Notes has been duly authorized by the Transferor,
and, when the Class A Notes have been duly executed and delivered by the
Owner Trustee, authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for pursuant to the Class A Note
Underwriting Agreement, the Class A Notes will be duly issued and entitled
to the benefits and security afforded by the Indenture, except as such
enforceability is subject to: (x) limitations imposed by bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance, arrangement
or other laws relating to or affecting the rights of creditors generally or
the rights of creditors of national banking associations; (y) rights to
indemnification and contribution which may be limited by
13
applicable law or equity principles or otherwise unenforceable as against
public policy; and (z) general principles of equity, including without
limitation, the availability of specific performance, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(vii) Each of the Contribution and Sale Agreement, the Trust Agreement
and the Transfer and Servicing Agreement has been duly authorized, executed
and delivered by the Transferor, and is a legal, valid and binding
obligation of the Transferor enforceable against the Transferor in
accordance with its terms, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
(y) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(viii) The Class A Note Underwriting Agreement has been duly
authorized, executed and delivered by each of the Transferor and MCC.
(ix) Each of the Administration Agreement, the Contribution and Sale
Agreement and the Transfer and Servicing Agreement has been duly
authorized, executed and delivered by MCC and is a legal, valid and binding
obligation of MCC enforceable against MCC in accordance with its terms,
except (x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(x) Neither the transfer of the Receivables from MCC to the
Transferor, nor the transfer of the Receivables from the Transferor to the
Trust, nor the assignment of the Trust Estate to the Trust, nor the
assignment by the Transferor of its right, title and interest in the
Contribution and Sale Agreement to the Trust, nor the grant of the security
interest in the Collateral to the Indenture Trustee pursuant to the
Indenture, nor the execution and delivery of the Class A Note Underwriting
Agreement, the Contribution and Sale Agreement, the Trust Agreement or the
Transfer and Servicing Agreement by the Transferor, nor the execution of
the Class A Note Underwriting Agreement, the Administration Agreement, the
Contribution and Sale Agreement or the Transfer and Servicing Agreement by
MCC, nor the consummation of any transactions contemplated in the Class A
Note Underwriting Agreement, the Contribution and Sale
14
Agreement, the Trust Agreement, the Indenture, the Administration Agreement
or the Transfer and Servicing Agreement (such agreements, excluding the
Class A Note Underwriting Agreement, being, collectively, the "Basic
Documents"), nor the fulfillment of the terms thereof by MCC, the
Transferor or the Trust, as the case may be, will (x) conflict with, or
result in a breach, violation or acceleration of, or constitute a default
under, any term or provision of the certificate of incorporation or by-laws
of MCC or the Transferor or, to the best knowledge of such counsel after
due inquiry, of any indenture or other agreement or instrument to which MCC
or the Transferor is a party or by which either of them is bound, or (y)
result in a violation of or contravene the terms of any statute, order or
regulation applicable to MCC or the Transferor of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
either of them.
(xi) There are no actions, proceedings or investigations pending or,
to the best knowledge of such counsel, threatened before any court,
administrative agency, or other tribunal (1) asserting the invalidity of
the Trust or any of the Basic Documents, (2) seeking to prevent the
consummation of any of the transactions contemplated by any of the Basic
Documents or the execution and delivery thereof, (3) that could reasonably
be expected to materially and adversely affect the performance (A) by MCC
of its obligations under, or the validity or enforceability of, the Class A
Note Underwriting Agreement, the Administration Agreement, the Contribution
and Sale Agreement or the Transfer and Servicing Agreement (B) by the
Transferor of its obligations under, or the validity or enforceability of,
the Class A Note Underwriting Agreement, the Contribution and Sale
Agreement, the Trust Agreement or the Transfer and Servicing Agreement or
(C) by the Servicer of its obligations under, or the validity or
enforceability of, the Transfer and Servicing Agreement.
(xii) To the best knowledge of such counsel after due inquiry, no
default exists and no event has occurred which, with notice, lapse of time
or both, would constitute a default in the due performance and observance
of any term, covenant or condition of any agreement to which MCC or the
Transferor is a party or by which either of them is bound, which default is
or would have a material adverse effect on the financial condition,
earnings, business or properties of MCC and its subsidiaries, taken as a
whole.
(xiii) Should MCC become the debtor in a case under the Bankruptcy
Code, if the matter were properly briefed and presented to a court, the
court should hold that (1) the transfer of the Receivables by MCC to the
Transferor in the manner set forth in the Contribution and Sale Agreement
would constitute an absolute sale of the Receivables, rather than a
borrowing by MCC secured by the Receivables, and thus
15
(2) the Transferor's rights to the Receivables would not be impaired by the
operation of Section 362(a) of the Bankruptcy Code.
(xiv) Should MCC become the debtor in a case under the Bankruptcy
Code, and the Transferor would not otherwise properly be a debtor in a case
under the Bankruptcy Code, and if the matter were properly briefed and
presented to a court exercising bankruptcy jurisdiction, the court,
exercising reasonable judgment after full consideration of all relevant
factors, should not order, over the objection of the Noteholders, the
substantive consolidation of the assets and liabilities of the Transferor
with those of MCC based on any legal theories currently subscribed to by
federal courts exercising bankruptcy jurisdiction.
(xv) Such counsel is familiar with the Servicer's standard operating
procedures relating to the Servicer's acquisition of a perfected first
priority security interest in the equipment financed by the Servicer
pursuant to commercial loan and lease contracts in the ordinary course of
the Servicer's business. Assuming that the Servicer's standard procedures
have been followed with respect to the perfection of security interests in
the Financed Equipment (and such counsel has no reason to believe that such
procedures have not been followed), the Servicer has acquired or will
acquire a perfected first priority security interest in the Financed
Equipment.
(xvi) The Contribution and Sale Agreement grants to the Transferor a
valid security interest in MCC's rights in the Receivables and the proceeds
thereof. The Transfer and Servicing Agreement grants to the Trust a valid
security interest in the Transferor's rights in the Receivables and the
proceeds thereof. The Indenture grants to the Indenture Trustee a valid
security interest in the Trust's rights in the Receivables and the proceeds
thereof.
(xvii) The Receivables are chattel paper as defined in the UCC.
(xviii) Immediately prior to the transfer of the Receivables and the
proceeds thereof to the Trust, the Transferor had a first priority
perfected ownership interest in the Receivables and the proceeds thereof.
Immediately prior to the transfer of the Receivables and the proceeds
thereof to the Indenture Trustee, the Trust had a first priority perfected
security interest in the Receivables and the proceeds thereof. The
Indenture Trustee has a first priority perfected security interest in the
Receivables and the proceeds thereof. The opinion covered by this
paragraph (xviii) shall be subject to customary UCC exceptions and
qualifications.
16
(xix) The Transfer and Servicing Agreement, the Trust Agreement, the
Indenture, the Administration Agreement and the Contribution and Sale
Agreement conform in all material respects with the description thereof
contained in the Prospectus and any supplement thereto.
(xx) The statements in the Prospectus under the headings "Risk
Factors--Risks Relating to Perfection of Interests in Receivables and in
Financed Equipment" and "Certain Legal Aspects of the Receivables--Security
Interest in Equipment" to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all material
respects.
(xxi) The statements contained in the Prospectus and any supplement
thereto under the headings "Description of the Class A Notes" and
"Description of the Transfer and Servicing Agreements," insofar as such
statements constitute a summary of the Class A Notes, the Indenture, the
Administration Agreement, the Transfer and Servicing Agreement and the
Trust Agreement, are a fair and accurate summary of the matters referred to
therein.
(xxii) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Basic Documents,
except such filings with respect to the transfer of the Receivables to the
Transferor pursuant to the Contribution and Sale Agreement, the transfer of
the Receivables to the Trust pursuant to the Transfer and Servicing
Agreement, and such as may be required under state securities or Blue Sky
laws of various jurisdictions.
(xxiii) All actions required to be taken and all filings required to
be made under the Act prior to the sale of the Class A Notes have been duly
taken or made.
(xxiv) The Trust Agreement is not required to be qualified under the
Trust Indenture Act and the Trust is not required to be registered under
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xxv) The Indenture has been duly qualified under the Trust Indenture
Act.
(xxvi) The Transferor is not, and will not as a result of the offer
and sale of the Class A Notes as contemplated in the Prospectus and this
Class A Note Underwriting Agreement become, an "investment company" as
defined in the Investment Company Act or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act.
17
(xxvii) To the best knowledge of such counsel after due inquiry, there
are no legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than those
disclosed therein.
(xxviii) The Registration Statement has become effective under the
Act, any required filing of any Preliminary Prospectus and the Prospectus
and any supplements thereto pursuant to Rule 424(b) has been or will be
made in the manner and within the time period required by Rule 424(b), and,
to the best knowledge of such counsel after due inquiry, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Exchange Act, the Trust
Indenture Act and the Rules and Regulations.
(xxix) Nothing has come to such counsel's attention that would lead
such counsel to believe that the Registration Statement or the Prospectus
or any amendment or supplement thereto as of the respective dates thereof
(other than the financial statements and other financial and statistical
information contained therein, as to which such counsel need not express
any view) contains an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein not
misleading.
(xxx) The Trust has been duly formed and is validly existing as a
statutory business trust and is in good standing under the laws of the
State of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Transfer and Servicing Agreement, the
Indenture, the Administration Agreement and the Notes.
(xxxi) The Indenture, the Transfer and Servicing Agreement and the
Administration Agreement have been duly authorized and, when duly executed
and delivered by the Owner Trustee on behalf of the Trust, will constitute
the legal, valid and binding obligations of the Trust, enforceable against
the Trust in accordance with their terms, except (x) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors, rights and (y) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may
be brought.
18
(xxxii) The Servicer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Transfer and Servicing Agreement, and had
at all relevant times, and now has, the power, authority and legal right to
acquire, own, sell and service the Receivables.
(xxxiii) The Servicer is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by the Transferor, the
Owner Trustee or the Indenture Trustee.
(xxxiv) The Transfer and Servicing Agreement has been duly authorized,
executed and delivered by the Servicer, and is the legal, valid and binding
obligation of the Servicer enforceable against the Servicer in accordance
with its terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and (y) the remedy
of specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(xxxv) Neither the execution and delivery of the Transfer and
Servicing Agreement by the Servicer, nor the consummation of any
transactions contemplated in the Class A Note Underwriting Agreement or the
Basic Documents, nor the fulfillment of the terms thereof by the Servicer
will conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the certificate of
incorporation or by-laws of the Servicer or of any indenture or other
agreement or instrument to which the Servicer is a party or by which it is
bound, or result in a violation of or contravene the terms of any statute,
order or regulation applicable to the Servicer of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it.
(xxxvi) To the best knowledge of such counsel after due inquiry, no
default exists and no event has occurred which, with notice, lapse of time
or both, would constitute a default in the due performance and observance
of any term, covenant or condition of any agreement to which the Servicer
is a party or by which it is bound, which default is or would have a
material adverse effect on the financial condition, earnings, business or
properties of the Servicer and its subsidiaries, taken as a whole.
19
Such counsel shall also opine as to such other matters as the
Underwriter may reasonably request. Certain opinions set forth above in this
Section 7(e) shall be given by Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP or such other
outside counsel to MCC, the Transferor and the Trust as may be acceptable to the
Underwriter.
(f) The Underwriter shall have received an opinion addressed to it of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP in its capacity as Special Tax Counsel for
the Trust, substantially to the effect that the statements in the Prospectus
under the headings "Summary of Terms--Tax Status" (to the extent relating to
Federal income tax consequences) and "Federal Income Tax Considerations"
accurately describe the material Federal income tax consequences to holders of
the Class A Notes, and the statements in the Prospectus under the heading "ERISA
Considerations," to the extent that they constitute statements of matters of law
or legal conclusions with respect thereto, have been prepared or reviewed by
such counsel and accurately describe the material consequences to holders of the
Class A Notes under ERISA.
(g) The Underwriter shall have received an opinion addressed to it of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, in its capacity as Special Counsel to the
Underwriter, dated the Closing Date, with respect to the validity of the Class A
Notes and such other related matters as the Underwriter shall require and the
Transferor shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(h) The Underwriter shall have received an opinion addressed to it,
the Transferor, the Servicer and the Indenture Trustee, and such other counsel
acceptable to the Underwriter and its counsel, dated the Closing Date and
satisfactory in form and substance to the Underwriter and its counsel,
substantially to the effect that:
(i) The Indenture Trustee is a New York banking corporation duly
organized and validly existing under the laws of the State of New York.
(ii) The Indenture Trustee has the full corporate trust power to
accept the office of trustee under the Indenture and to enter into and
perform its obligations under the Indenture, the Transfer and Servicing
Agreement and the Administration Agreement.
(iii) The execution and delivery of the Indenture and the
Administration Agreement and the acceptance of the Transfer and Servicing
Agreement and the performance by the Indenture Trustee of its obligations
under the Indenture, the Transfer and Servicing Agreement and the
Administration Agreement have been duly authorized by all necessary
20
corporate action of the Indenture Trustee and each has been duly executed
and delivered by the Indenture Trustee.
(iv) The Indenture, the Transfer and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations of the
Indenture Trustee enforceable against the Indenture Trustee in accordance
with their terms under the laws of the State of New York and the Federal
law of the United States of America.
(v) The execution and delivery by the Indenture Trustee of the
Indenture and the Administration Agreement and the acceptance of the
Transfer and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any New York or
United States Federal governmental authority, other than the filing of Form
T-1 under the Trust Indenture Act.
(vi) Each of the Notes has been duly authenticated by the Indenture
Trustee.
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Transfer and Servicing Agreement, the
Indenture or the Administration Agreement, nor the fulfillment of the terms
thereof by the Indenture Trustee, will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter, by-laws
or other organizational documents of the Indenture Trustee or the terms of
any indenture or other agreement or instrument known to such counsel and to
which the Indenture Trustee is a party or is bound or any judgment, order
or decree known to such counsel to be applicable to the Indenture Trustee
of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee.
(viii) To the best knowledge of such counsel after due inquiry and
belief, there is no action, suit or proceeding pending or threatened
against the Indenture Trustee (as trustee under the Indenture or in its
individual capacity) before or by any governmental authority that if
adversely decided, would materially adversely affect the ability of the
Indenture Trustee to perform its obligations under the Indenture, the
Transfer and Servicing Agreement or the Administration Agreement.
(ix) The execution, delivery and performance by the Indenture Trustee
of the Transfer and Servicing Agreement, the Indenture and the
Administration Agreement will not subject any of the property or assets of
the Trust or any portion thereof, to any liens that are unrelated to the
transactions contemplated in such Agreements.
(i) The Underwriter shall have received an opinion addressed to it,
the Transferor and the Servicer of Xxxxxxxx,
21
Xxxxxx & Finger, counsel to the Owner Trustee, and such other counsel acceptable
to the Underwriter and its counsel, dated the Closing Date and satisfactory in
form and substance to the Underwriter and its counsel, when taken together,
substantially to the effect that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the
State of Delaware.
(ii) The Owner Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Trust Agreement and, on
behalf of the Trust, under the Indenture, the Transfer and Servicing
Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on behalf
of the Trust, of the Indenture, the Transfer and Servicing Agreement, the
Administration Agreement, the Notes and the performance by the Owner
Trustee of its obligations under the Trust Agreement, the Indenture, the
Transfer and Servicing Agreement and the Administration Agreement have been
duly authorized by all necessary corporate action of the Owner Trustee and
each has been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Transfer and Servicing Agreement, the
Indenture and the Administration Agreement constitute valid and binding
obligations of the Owner Trustee enforceable against the Owner Trustee in
accordance with their terms under the laws of the State of New York and the
State of Delaware and the Federal law of the United States of America.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the Indenture, the Transfer and
Servicing Agreement and the Administration Agreement do not require any
consent, approval or authorization of, or any registration or filing with,
any Delaware or United States Federal governmental authority having
jurisdiction over the trust power of the Owner Trustee, other than those
consents, approvals or authorizations as have been obtained and the filing
of the Certificate of Trust with the Secretary of State of the State of
Delaware.
(vi) The Owner Trustee has duly executed, authenticated and delivered
the Notes issued on the Closing Date on behalf of the Trust.
(vii) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the Transfer and Servicing
Agreement, the Indenture and the Administration Agreement, and the
performance by the Owner Trustee of its obligations thereunder, do not
conflict with,
22
result in a breach or violation of or constitute a default under, the
Articles of Association or By-laws of the Owner Trustee.
(j) The Underwriter shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting officer
of each of the Transferor and the Servicer in which such officers shall state
that, to the best of their knowledge after due investigation, (i) the
representations and warranties of the Transferor or the Servicer, as the case
may be, contained in the Trust Agreement, the Contribution and Sale Agreement
and the Transfer and Servicing Agreement, as applicable, are true and correct,
that the Transferor or the Servicer, as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are contemplated by the
Commission and (ii) no material adverse change in or affecting particularly the
business or properties of the Trust, the Transferor, or the Servicer has
occurred.
(k) The Underwriter shall have received evidence satisfactory to it
that, on or before the Closing Date, the Administrator, on behalf of the
Transferor, the Trust and the Indenture Trustee has taken possession of the
applicable Receivables reflecting the transfer of the interest of MCC in such
Receivables and the proceeds thereof to the Transferor, and the transfer of the
interest of the Transferor in such Receivables and the proceeds thereof to the
Trust and the grant of the security interest by the Trust in such Receivables
and the proceeds thereof to the Indenture Trustee.
(l) The Class A Notes shall have been rated at least "AAA" by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., and at least "Aaa" by Xxxxx'x Investors Service, Inc.
(m) The issuance of the Class A Notes shall not have resulted in a
reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued by the Transferor or any of its affiliates or by
any trust established by the Transferor or any of its affiliates.
(n) On the Closing Date, $304,203,000 aggregate principal amount of
Class A 6.85% Asset Backed Notes shall have been issued and sold.
The Transferor will provide or cause to be provided to the Underwriter
such conformed copies of such opinions, certificates, letters and documents as
the Underwriter reasonably requests.
23
8. Indemnification and Contribution.
(a) The Transferor and MCC will jointly and severally, indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act as follows: against any
losses, claims, damages, liabilities or expenses, joint or several, to which the
Underwriter or any such person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (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 the Registration Statement (or
any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the Transferor or
MCC; and will reimburse the Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
action or claim; provided, however, that the Transferor and MCC shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense 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, the Prospectus as amended or
supplemented and any other prospectus relating to the Class A Notes or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to MCC or the Transferor by the Underwriter expressly for
use in the Prospectus as amended or supplemented relating to such Class A Notes;
and provided further, that the Transferor and MCC shall not be liable to the
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus or Prospectus Supplement to the extent that any such
loss, claim, damage, liability or expense results from the fact that the
Underwriter sold Class A Notes 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 Prospectus
or Prospectus Supplement (excluding documents incorporated by reference) or of
the Prospectus as then amended or supplemented (excluding documents incorporated
by reference) if the Transferor has previously furnished copies thereof to the
Underwriter.
24
(b) The Underwriter agrees to indemnify and hold harmless the
Transferor and MCC against any losses, claims, damages, liabilities or expenses
to which the Transferor and MCC may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (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
Prospectus as amended or supplemented and any other prospectus relating to the
Class A Notes, or any amendment or supplement 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 Prospectus as amended or supplemented and any
other prospectus relating to the Class A Notes, or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Transferor or MCC by the Underwriter expressly for use therein; and will
reimburse the Transferor and MCC for any legal or other expenses reasonably
incurred by the Transferor and MCC in connection with investigating or defending
any such action or claim.
In addition, the Underwriter agrees to indemnify and hold harmless the
Transferor and MCC against any losses, claims, damages, liabilities or expenses
to which the Transferor and MCC may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (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 the Computational Materials,
ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets distributed
by the Underwriter and filed in a Form 8-K pursuant to Section 5(n) hereof;
provided, however, that the Underwriter shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises out
of, or is based upon, an untrue statement contained in any Computational
Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets in
reliance upon and in conformity with (x) information furnished to the
Underwriter by the Transferor or (y) information contained in the Registration
Statement or any Preliminary Prospectus, the Prospectus as amended or
supplemented and any other prospectus relating to the Class A Notes, or any
amendment or supplement thereto other than written information furnished to the
Transferor or MCC by the Underwriter expressly for use therein, and will
reimburse the Transferor and MCC for any legal or other expenses reasonably
incurred by the Transferor and MCC in connection with investigating or defending
any such action or claim.
(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
25
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. 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), 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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) above in respect of any losses, claims, damages, liabilities or
expenses (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, liabilities or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Transferor and MCC on the one hand
and the Underwriter on the other from the offering of the Class A Notes to which
such loss, claim, damage, liability or expense (or action in respect thereof)
relates. If, however, the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (b) above in respect of any losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to therein or if the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Transferor and MCC on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Transferor and MCC on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the sale of Class A Notes (before deducting expenses) received by the
Transferor and MCC bear to the total commissions or discounts received by the
Underwriter in respect thereof. The relative fault shall be
26
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 required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the
Transferor and MCC on the one hand or by the Underwriter on the other and the
parties, relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Transferor and MCC and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation 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,
liabilities or expenses (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 Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Class A Notes
purchased by or through the Underwriter were sold exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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.
(e) The obligations of the Transferor and MCC under this Section 8
shall be in addition to any liability which the Transferor and MCC may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter within the meaning of the Act; and the
Underwriter's obligations under this Section 8 shall be in addition to any
liability which the Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Transferor and
MCC and to each person, if any, who controls the Transferor or MCC within the
meaning of the Act.
9. No Bankruptcy Petition. The Underwriter and MCC each covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Transferor or by a trust for
which the Transferor was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not institute
against, or join any other person in instituting against, the Transferor any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar law.
10. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties
27
and other statements of the Transferor or MCC or any of their officers and the
Underwriter set forth in or made pursuant to this Agreement or contained in
certificates of officers of the Transferor submitted pursuant hereto shall
remain operative and in full force and effect, regardless of (i) any termination
of this Agreement, (ii) any investigation or statement as to the results thereof
made by or on behalf of the Underwriter or of the Transferor or any of their
respective representatives, officers or directors or any controlling person, and
(iii) delivery of and payment for the Class A Notes. If for any reason the
purchase of the Class A Notes by the Underwriter is not consummated, the
Transferor shall remain responsible for the expenses to be paid or reimbursed by
the Transferor pursuant to Section 6 and the respective obligations of the
Transferor and the Underwriter pursuant to Section 8 shall remain in effect. If
for any reason the purchase of the Class A Notes by the Underwriter is not
consummated (other than because of a failure to satisfy the conditions set forth
in items (ii), (iv) or (v) of Section 7(d)), the Transferor will reimburse the
Underwriter, upon demand, for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by it in connection with
the offering of the Class A Notes.
11. Notices. All communications hereunder will be in
writing and, if sent to the Underwriter, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxx Xxxxxx, World Financial Center,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxx Xxxxx; if sent to
the Transferor, will be mailed, delivered or telegraphed, and confirmed to it at
MetLife Capital Funding Corp. III, 00000 X.X. 0xx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Treasurer; if sent to MCC, will be mailed,
delivered or telegraphed, and confirmed to it at MetLife Capital Corporation,
00000 X.X. 0xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Chief
Financial Officer. Any such notice will take effect at the time of receipt.
12. Successors. This Class A Note Underwriting Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligations hereunder. No
purchaser of Class A Notes from the Underwriter shall be deemed to be a
successor of the Underwriter merely because of such purchase.
13. Counterparts. This Class A Note Underwriting Agreement may be
executed 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
Agreement.
14. Applicable Law. This Class A Note Underwriting Agreement will be
governed by, and construed in accordance with, the laws of the State of New
York.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Transferor, MCC and the Underwriter
in accordance with its terms.
Very truly yours,
METLIFE CAPITAL FUNDING CORP. III
By: ----------------------------------
Name:
Title:
METLIFE CAPITAL CORPORATION
By: ------------------------------------
Name:
Title:
the foregoing Class A Note
Underwriting Agreement is hereby
confirmed and accepted as of the
date first written above.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: -----------------------------------
Name:
Title:
[Signature Page to Class A Note Underwriting Agreement]
EXHIBIT A
THIS TERM SHEET CONTAINS STRUCTURAL AND COLLATERAL INFORMATION WITH RESPECT
TO THE CLASS A NOTES; HOWEVER, THIS TERM SHEET DOES NOT CONTAIN COMPLETE
INFORMATION WITH RESPECT TO THE OFFERING OF THE CLASS A NOTES. THE INFORMATION
HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY THE INFORMATION CONTAINED IN THE
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. ADDITIONAL INFORMATION WILL BE
CONTAINED IN THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. PURCHASERS ARE URGED
TO READ BOTH THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS.
THIS TERM SHEET SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE CLASS A NOTES IN ANY
STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SALES OF THE CLASS A NOTES MAY NOT BE CONSUMMATED UNLESS THE PURCHASER HAS
RECEIVED BOTH THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS.
