_______________________________________________________________________________
METLIFE CAPITAL CORPORATION
and
METLIFE CAPITAL FUNDING CORP. III
FORM OF CONTRIBUTION AND SALE AGREEMENT
Dated as of[__________ __, 19__]
_______________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Other Definitional Provisions............................ 3
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Initial Receivables........................ 4
SECTION 2.02. Conveyance of Subsequent Receivables..................... 4
SECTION 2.03. Ownership of Receivables................................. 5
SECTION 2.04. Books and Records........................................ 6
SECTION 2.05. The Closing.............................................. 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Funding................ 6
SECTION 3.02. Representations and Warranties of MCC.................... 7
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to the Obligation of Funding.................. 13
SECTION 4.02. Conditions to Obligation of MCC with Respect to Initial
Receivables.............................................. 14
SECTION 4.03. Conditions to Obligation of MCC With Respect to
Subsequent Receivables................................... 14
SECTION 4.04. Subordination of Liens on Financed Equipment............. 15
ARTICLE V
COVENANTS OF MCC
SECTION 5.01. Protection of Right, Title and Interest.................. 15
SECTION 5.02. Other Liens or Interests................................. 15
SECTION 5.03. Chief Executive Office................................... 15
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SECTION 5.04. Corporate Existence...................................... 16
SECTION 5.05. Indemnification.......................................... 17
ARTICLE VI
COVENANTS OF FUNDING
SECTION 6.01. Protection of Right, Title and Interest.................. 17
SECTION 6.04. Corporate Existence...................................... 17
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Obligations of MCC....................................... 19
SECTION 7.02. Repurchase Events........................................ 19
SECTION 7.03. Funding Assignment of Repurchased Receivables............ 19
SECTION 7.04. Trust.................................................... 19
SECTION 7.05. Amendment................................................ 20
SECTION 7.06. Waivers.................................................. 20
SECTION 7.07. Notices.................................................. 20
SECTION 7.08. Costs and Expenses....................................... 20
SECTION 7.09. Representations of MCC and Funding....................... 21
SECTION 7.10. Confidential Information................................. 21
SECTION 7.11. Headings and Cross-References............................ 21
SECTION 7.12. Governing Law............................................ 21
SECTION 7.13. Counterparts............................................. 21
EXHIBIT A Supplemental Assignment
SCHEDULE A Schedule of Receivables [Deemed Incorporated]
ii
CONTRIBUTION AND SALE AGREEMENT dated as of _________ __, 199__ between
METLIFE CAPITAL CORPORATION, a Delaware corporation ("MCC"), and METLIFE CAPITAL
FUNDING CORP. III, a Delaware corporation ("Funding").
WHEREAS in the regular course of its business, MCC has originated or
purchased certain fixed-rate commercial equipment loan contracts and equipment
finance lease contracts secured by new and used machinery, equipment or other
property; and
WHEREAS MCC and Funding wish to set forth the terms pursuant to which the
Receivables (as hereinafter defined) are to be contributed or sold by MCC to
Funding, which Receivables will be transferred by Funding, pursuant to the
Transfer and Servicing Agreement (as hereinafter defined), to MetLife Capital
Equipment Loan Trust [Series] (the "Trust"), which Trust will issue Asset Backed
Notes (the "Notes") secured by, such Receivables and the other property of the
Trust.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions. Except as otherwise specified herein or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, by contract or otherwise; and the terms
"controlled by," "controlling" and "under common control with" have meanings
correlative to the foregoing.
"Agreement" shall mean this Contribution and Sale Agreement, as the same
may be amended, modified or supplemented from time to time.
"Assignment" shall mean the document of assignment attached to this
Agreement as Exhibit A.
"Basic Documents" shall have the meaning given such term in the Indenture.
"Closing Date" shall mean [___________ __, 199__].
"Eligible Franchise Concept" shall mean a franchise concept included
within MCC's Franchise Finance Portfolio relating to any of McDonald's,
Burger King, Wendy's, Taco ▇▇▇▇, Pizza Hut, Kentucky Fried Chicken,
Applebee's and TGI Fridays.
"Funding" shall mean MetLife Capital Funding Corp. III, a Delaware
corporation, its successors and assigns.
"Indenture" shall mean the Indenture dated as of [__________ __, 199__]
between the Trust and [____________________], as indenture trustee, as the same
may be amended, modified or supplemented from time to time.
"Initial Receivable" shall mean each loan or lease Contract originated by
MCC and transferred to Funding pursuant to Section 2.01 that is identified in
the initial Schedule of Receivables assigned to Funding on the Closing Date
pursuant to Section 2.01.
"MCC" shall mean MetLife Capital Corporation, a Delaware corporation, its
successors and assigns.
"Minimum Weighted Average APR" shall mean a weighted average APR
(weighted based on the Principal Balance of each Receivable) equal to the sum
of the Class A Note Interest Rate and the Servicing Fee Rate.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, business
trust, trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Prospectus" shall mean the Prospectus (which consists of a base prospectus
and a prospectus supplement, each dated [__________ __, 199__] pursuant to which
the Notes and Certificates were offered.
"Receivable" shall mean each Initial Receivable and each Subsequent
Receivable; provided, that from and after the date on which a Receivable becomes
an Acquired Receivable, such Acquired Receivable will no longer be a Receivable.
"Related Property" shall mean all right, title and interest of MCC in, to
and under the Financed Equipment, any proceeds with respect to the Receivables
from claims on any physical damage, credit life or disability insurance policies
covering Financed Equipment or Obligors with respect to Financed Equipment, as
the case may be, and the proceeds of any of the foregoing.
"Repurchase Event" shall have the meaning specified in Section 7.02(a).
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"Schedule of Receivables" shall mean each list of Receivables (as
supplemented from time to time to reflect Subsequent Receivables and Acquired
Receivables) annexed hereto as Schedule A (which may be in the form of
microfiche) and incorporated into and made a part of this Agreement.
"Subsequent Receivable" shall mean each loan or lease Contract originated
by MCC and transferred to Funding pursuant to Section 2.02, that is identified
in a Schedule of Receivables attached to a Supplemental Assignment.
"Supplemental Assignment" shall have the meaning assigned thereto in
Section 4.01.
"Transfer and Servicing Agreement" shall mean the Transfer and Servicing
Agreement dated as of [__________ __, 199__], among the Trust, Funding (in its
capacity as Transferor thereunder) and MCC (in its capacity as Servicer
thereunder), as the same may be amended, modified or supplemented from time to
time.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
SECTION 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Transfer and Servicing Agreement or, if not
defined therein, in the Indenture, or if not defined therein, in the Trust
Agreement.
(b) All terms defined in this Agreement shall have the meanings contained
herein when used in any document made or delivered pursuant hereto unless
otherwise defined therein.
(c) As used in this Agreement and in any document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement or in
any such other document, and accounting terms partly defined in this Agreement
or in any such other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
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ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Initial Receivables.
(a) Subject to the satisfaction of the conditions set forth herein, MCC
does hereby contribute, transfer, assign, set over and otherwise convey to
the capital of Funding, without recourse (subject to the obligations herein),
all right, title and interest in and to the following, whether now owned or
hereafter acquired:
(i) all right, title and interest of MCC, in and to the Initial
Receivables, and all moneys (including accrued interest) due or to become
due thereunder on and after the Initial Cut-off Date;
(ii) the interest of MCC in the Financed Equipment granted by
Obligors pursuant to the Initial Receivables;
(iii) the interest and rights of MCC in any proceeds with
respect to the Initial Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed Equipment or
Obligors with respect to Financed Equipment, as the case may be; and
(iv) the proceeds of any and all of the foregoing.
(b) The Initial Receivables transferred on the Closing Date are to be
conveyed by MCC to Funding as a capital contribution to Funding in
consideration for MCC's ownership of all of the outstanding common stock of
Funding.
SECTION 2.02. Conveyance of Subsequent Receivables.
(a) Subject to the conditions set forth herein, on each Transfer
Date, MCC shall sell, transfer, assign, set over and otherwise conveys to
Funding, without recourse (subject to the obligations herein) all right,
title and interest of MCC in and to the following, whether then owned or
thereafter acquired:
(i) all right, title and interest of MCC, in and to the Subsequent
Receivables listed on the related Schedule of Receivables and all moneys
(including accrued interest) due or to become due, or received thereunder
on or after the related Subsequent Cut-off Date;
(ii) the interest of MCC in the Financed Equipment granted by
Obligors pursuant to such Subsequent Receivables;
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(iii) the interest and rights of MCC in any proceeds with respect to
such Subsequent Receivables from claims on any physical damage, credit life
or disability insurance policies covering Financed Equipment or Obligors
with respect to Financed Equipment; and
(iv) the proceeds of any of the foregoing.
(b) The consideration for the Subsequent Receivables being transferred
on each Transfer Date shall be in the form of (i) cash, (ii) with the consent
of MCC, by means of capital contributed to Funding by MCC, or (iii) with the
consent of MCC, any combination of the foregoing. The purchase price for any
Subsequent Receivables being sold for cash on such Transfer Date shall be an
amount equal to the Principal Balance of such Subsequent Receivables as of
the related Subsequent Cut-off Date.
SECTION 2.03. Ownership of Receivables.
(a) Upon the acceptance by Funding of the capital contribution from MCC
as set forth in Section 2.01, the ownership of each Initial Receivable and
the contents of the related Receivable Files shall be vested in Funding.
Upon the delivery of the purchase price set forth in Section 2.02, the
ownership of the related Subsequent Receivables and the contents of the
related Receivable Files shall be vested in Funding. Notwithstanding the
foregoing, the assignment, transfer and conveyance set forth in Section 2.01
or Section 2.02 shall not constitute and is not intended to result in the
creation, or an assumption by Funding of any obligation of MCC or any other
Person in connection with the Receivables or any Contract or under any
agreement or instrument relating thereto, including any obligation to any
Obligors or any Affiliate of or other Person to whom MCC may delegate
servicing duties or to insurers.
(b) It is the express intent of MCC and Funding that the conveyance of
the Receivables by MCC to Funding pursuant to this Agreement be construed as
a sale or contribution of the Receivables and the Related Property by MCC to
Funding. However, in the event that, notwithstanding the intent of the
parties, the Receivables and Related Property are held to continue to be
property of MCC, then (i) this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the UCC, and (ii) the
conveyance by MCC provided for in the Agreement shall be deemed to be and
hereby is a grant by MCC to Funding of a security interest in and to all of
MCC's right, title and interest in, to and under all accounts, contract
rights, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices
of credit, certificated securities and uncertificated securities consisting
of, arising from, or relating to the Receivables and the Related Property, to
secure the rights of Funding under this Agreement and the obligations of MCC
hereunder. MCC and Funding shall, to the extent consistent with this
Agreement, take such actions (other than delivering the original contract) as
may be necessary to ensure that, if the conveyance of the Receivables and the
Related Property by MCC to Funding pursuant to this Agreement is not deemed
to be a sale or a contribution of capital, the security interest in the
Receivables and the Related Property created hereunder will be a
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perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement.
SECTION 2.04. Books and Records.
(a) In connection with the transfer, assignment, set-over and conveyance
set forth in Section 2.01 or Section 2.02, MCC agrees to record and file, at
its own expense, any financing statements (and continuation statements with
respect to such financing statements when applicable) required to be filed
with respect to the Receivables sold or to be sold by MCC hereunder, meeting
the requirements of applicable state law in such manner and in such
jurisdictions as are necessary under the applicable UCC to perfect (on the
date such Receivables are transferred and assigned to Funding) the transfer
and assignment of the Receivables to Funding, and to deliver a file-stamped
copy of such financing statements or other evidence of such filings to
Funding on or prior to the Initial Closing Date (excluding such continuation
and similar statements, which shall be delivered promptly after filing). (b)
The transfer of each Receivable shall be reflected on MCC's and Funding's
balance sheets and other financial statements prepared in accordance with
generally accepted accounting principles as a sale or contribution of assets
by MCC to Funding. MCC shall be responsible for maintaining, and shall
maintain, a complete and accurate set of accounts, records and computer files
for each Receivable which shall be clearly marked to reflect the ownership of
each Receivable by Funding.
(c) In connection with the sales and conveyances hereunder, MCC further
agrees, at its own expense, on or prior to the Closing Date with respect to
the Initial Receivables and on or prior to the relevant Transfer Date with
respect to the Subsequent Receivables to indicate on its books and records
(including any computer files) that the Receivables have been sold to Funding
or contributed to the capital of Funding pursuant to this Agreement. MCC
further agrees not to alter the computer file designation referenced in this
paragraph with respect to the Receivables during the term of this Agreement
unless and until such Receivable becomes an Acquired Receivable.
SECTION 2.05. The Closing. The conveyance of the Initial Receivables
shall take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date, simultaneously with the
closing of the transactions contemplated by the Transfer and Servicing
Agreement, the underwriting agreement related to the Notes and the other Basic
Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Funding. Funding hereby
represents and warrants to MCC as of the date hereof, as of the Closing Date and
as of each Transfer Date:
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(a) Organization and Good Standing. Funding is duly organized,
validly existing in good standing under the laws of the State of Delaware,
and has the power and authority to own its properties and to conduct the
business in which it is currently engaged, and had at all relevant times,
and has, the power, authority and legal right to acquire and own the
Receivables.
(b) Due Qualification. Funding is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. Funding has the power and authority to
execute and deliver this Agreement and to carry out its terms and the
execution, delivery and performance of this Agreement has been duly
authorized by Funding by all necessary corporate action.
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of Funding, or any indenture,
agreement or other instrument to which Funding is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than the Basic Documents); nor violate any law or, to the
best of Funding's knowledge, any order, rule or regulation applicable to
Funding of any court, federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
Funding or its properties.
(e) No Proceedings. There are no proceedings or investigations
pending or, to Funding's best knowledge, threatened, before any court,
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Funding or its
properties which (i) assert the invalidity of this Agreement, (ii) seek to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seek any determination or ruling that might materially
and adversely affect the performance by Funding of its obligations under,
or the validity or enforceability of, this Agreement.
(f) No Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery by Funding of this
Agreement or any other Basic Document, the performance by Funding of the
transactions contemplated by this Agreement or any other Basic Document and
the fulfillment by Funding of the terms hereof or thereof, have been
obtained or have been completed and are in full force and effect (other
than approvals, authorizations, consents, orders or other actions which if
not obtained or completed or in full force and effect would not have
7
a material adverse effect on Funding or upon the collectibility of any
Receivable or upon the ability of Funding to perform its obligations under
this Agreement).
SECTION 3.02. Representations and Warranties of MCC.
(a) MCC hereby represents and warrants to Funding as of the date hereof,
as of the Closing Date and as of each Transfer Date:
(i) Organization and Good Standing. MCC is duly organized,
validly existing in good standing under the laws of the State of Delaware,
and has the power and authority to own its properties and to conduct the
business in which it is currently engaged, and had at all relevant times,
and has, the power, authority and legal right to own and transfer the
Receivables.
(ii) Due Qualification. MCC is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. MCC has the power and authority to
execute and deliver this Agreement and to carry out its terms; MCC has full
power and authority to contribute, sell and assign the property
contributed, sold and assigned to Funding hereby and has duly authorized
such sale and assignment to Funding by all necessary corporate action; and
each of the execution, delivery and performance of this Agreement has been
duly authorized by MCC by all necessary corporate action.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
neither conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of MCC, or any
material indenture, agreement or other instrument to which MCC is a party
or by which it is bound; nor result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); nor
violate any material law or, to the best of MCC's knowledge, any material
order, rule or regulation applicable to MCC of any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over MCC or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending, or, to the best of MCC's knowledge, threatened, before any court,
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over MCC or its properties
which (A) assert the invalidity of this Agreement, (B) seek to prevent the
consummation of any of the transactions contemplated by this Agreement, or
(C) seek any determination or ruling that might materially and adversely
affect the performance by MCC of its obligations under, or the validity or
enforceability of, this Agreement.
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(vi) No Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by MCC of
this Agreement or any other Basic Document, the performance by MCC of the
transactions contemplated by this Agreement or any other Basic Document and
the fulfillment by MCC of the terms hereof or thereof, have been obtained
or have been completed and are in full force and effect (other than
approvals, authorizations, consents, orders or other actions which if not
obtained or completed or in full force and effect would not have a material
adverse effect on MCC or upon the collectibility of any Receivable or upon
the ability of MCC to perform its obligations under this Agreement).
(vii) Chief Executive Office. MCC's chief executive office
is located at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
(b) MCC makes the following representations and warranties as to the
Receivables on which Funding relied in accepting the Receivables. All such
representations and warranties are made "to the best of MCC's knowledge";
provided, however, that the determination as to whether a Repurchase Event has
occurred pursuant to Section 7.02 of this Agreement shall be made without
reliance on the phrase described above. Such representations and warranties
speak as of the Closing Date with respect to the Initial Receivables and, with
respect to Subsequent Receivables, as of the Transfer Date relating to such
Subsequent Receivables but shall survive the sale, transfer and assignment of
the Receivables to Funding and the subsequent assignments and transfers of the
Receivables pursuant to the Transfer and Servicing Agreement and pursuant to the
Indenture:
(i) Characteristics of Receivables. Each Receivable (A) was
originated in the United States of America by MCC in the ordinary course of
business and was fully and properly executed by the parties thereto, (B) is
secured by a valid, subsisting and enforceable first priority security
interest in favor of MCC in the Financed Equipment, which security interest
is assignable by MCC to Funding, (C) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are
adequate for realization against the collateral of the benefits of the
security, (D) provides for fixed payments on a monthly basis and yields
interest at a fixed-rate (E) does not have a Quality Code of more than 2,
(F) was originated in connection with a transaction that, in accordance
with MCC's customary and normal classification procedures, is classified
as other than a "commercial/industrial" transaction and (G) if such
Receivable relates to a franchise concept, then such franchise concept is
an Eligible Franchise concept.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables to this Agreement is true and correct in all
material respects as of the opening of business on the Initial Cut-off Date
(with respect to the Initial
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Receivables) and as of the applicable Subsequent Cut-Off Date (with respect
to the related Subsequent Receivables). The computer tape regarding the
Receivables made available to Funding and its assigns is true and correct
in all respects.
(iii) Compliance with Law. Each Receivable complied at the
time it was originated or made, and at the execution of this Agreement
(with respect to the Initial Receivables) is MCC) or as of the applicable
Transfer Date (with respect to Subsequent Receivables) complies, in all
material respects with all requirements of applicable federal, state and
local laws and regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations B and S, and other equal credit opportunity and disclosure
laws, in each case to the extent applicable to non-consumer transactions.
(iv) Binding Obligations. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor located outside of the States of Washington and/or Florida,
enforceable by the holder thereof (which as of the Closing Date (with
respect to the Initial Receivables) is MCC) or the relevant Transfer Date
(with respect to Subsequent Receivables) in accordance with its terms,
subject to bankruptcy, insolvency and other laws relating to the enforcement
of creditors' rights generally and to general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law). Such enforceability has not been and is not adversely
affected by whether or not MCC was or is qualified to do business in the
state in which the Obligor was or is located.
(v) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been released
from the lien granted by the Obligor of the related Receivable in whole or
in part. No Receivable is rescindable on the basis of whether or not MCC
was or is qualified to do business in the state in which the Obligor was or
is located.
(vi) Prospectus Information. As of the Initial Cut-off Date,
each Initial Receivable conforms and all Receivables in the aggregate
conform, in all material respects, to the description set forth in the
Prospectus, including all statistical data or otherwise.
(vii) No Amendments. No Receivable has been amended such that the
amount of the Obligor's Scheduled Payments has been increased or decreased.
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(viii) No Defenses. No right of rescission, setoff, counterclaim
or defense has been asserted or threatened with respect to any Receivable.
(ix) No Liens. No liens or claims have been filed for work,
labor or materials relating to any Financed Equipment that are liens prior
to, or equal to, the security interest in the Financed Equipment granted by
the Obligor to MCC.
(x) No Default. No Receivable has a payment that is more than
60 days overdue as of the applicable Cut-off Date and, except as permitted
in this paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred and is
continuing; and (except for payment defaults continuing for a period of not
more than 60 days) no continuing condition that with notice or the lapse of
time would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable has arisen; and MCC has not
waived and shall not waive any of the foregoing.
(xi) Insurance. MCC, in accordance with its customary
procedures, has determined that the Obligor has obtained physical damage
insurance covering the Financed Equipment, and under the terms of the
Receivable the Obligor is required to maintain such insurance.
(xii) Title. It is the intention of MCC that the transfer and
assignment herein contemplated constitute a contribution of the Initial
Receivables and either a contribution or a sale (as provided in Section
2.02) of the Subsequent Receivables from MCC to Funding, and that the
beneficial interest in and title to the Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy petition by or
against MCC under any bankruptcy law. No Receivable has been sold,
transferred, assigned or pledged by MCC to any Person other than Funding.
Immediately prior to the transfer and assignment herein contemplated, MCC
has good and marketable title to each Receivable, free and clear of all
Liens, encumbrances, security interests and rights of others and,
immediately upon the transfer thereof, Funding shall have good and
marketable title to each Receivable, free and clear of all Liens; and the
transfer of the Receivables to Funding has been perfected, by the filing of
appropriate financing statements pursuant to the UCC, under the UCC.
(xiii) Lawful Assignment. No Receivable has been originated in, or
is subject to the laws of, any jurisdiction under which the sale, transfer
and assignment of such Receivable or any Receivable under this Agreement is
unlawful, void or voidable.
(xiv) All Actions Taken. All actions (other than delivering the
original Contract) necessary to give Funding a first priority perfected
ownership or security interest in the Receivables pursuant to the
applicable UCC have been taken.
(xv) One Original. There is only one original Contract related
to each Receivable.
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(xvi) Maturity of Receivables. Each Initial Receivable has a
scheduled maturity of more than 11 months but not more than 120 months as
of the Initial Cut-Off Date. Each Subsequent Receivable has a scheduled
maturity of more than 11 months but not more than the difference between
120 months and the number of months that have passed in the Revolving
Period as of the related Subsequent Cut-Off Date for such Subsequent
Receivable.
(xvii) Location of Receivable Files. The Receivable Files are kept
at the location listed in Schedule B to the Transfer and Servicing
Agreement.
(xviii) No Bankruptcies. No Obligor on any Receivable as of the
applicable Cut-off Date was noted in the related Receivable File as having
filed for bankruptcy or as being subject to a bankruptcy proceeding and to
MCC's knowledge no such proceeding is pending or threatened against any
Obligor as of the Closing Date (with respect to the Initial Receivables) or
as of the relevant Transfer Date (with respect to Subsequent Receivables).
(xix) No Repossessions. No Financed Equipment securing any
Receivable has been repossessed as of the Closing Date (with respect to the
Initial Receivables) or as of the related Transfer Date (with respect to
Subsequent Receivables).
(xx) Chattel Paper. Each Receivable constitutes "accounts,"
"general intangibles" or "chattel paper" within the meaning of the UCC of
the State of Washington.
(xxi) U.S. Obligors. None of the Receivables is due from any
Person which does not have a mailing address in the United States of
America.
(xxii) Interest Accrual. Each Receivable is, as of the Closing
Date (with respect to the Initial Receivables) or as of the relevant
Transfer Date (with respect to the Subsequent Receivables), accruing
interest.
(xxiii) Financed Equipment. (A) Not more than 50% of the
Receivables, measured by federal income tax basis, are secured by Financed
Equipment consisting of land, buildings, structural components thereof or
other inherently permanent structures within the meaning of Treasury
Regulation Section 1.856-3(d) or interests therein within the meaning of
Treasury Regulation Section 1.856-3(c), (B) the Financed Equipment does not
consist of aircraft and (C) the Financed Equipment is located outside of
the State of Florida.
12
(xxiv) Leases. Each Lease, relating to any Receivable (A) is a
"lease intended for security" under the UCC, (B) is not a "consumer
lease" within the meaning of Article 2A of the UCC in any jurisdiction
where said Article 2A has been adopted and governs the construction thereof
and (C) to the best knowledge of MCC, the related Obligor has accepted the
related Financed Equipment leased to it and has not notified MCC of any
defects therein.
(xxv) Weighted Average Remaining Term. As of each Transfer
Date, the weighted average remaining term of the Receivables, taken as a
whole after taking into account the addition of the Subsequent Receivable to
be transferred on such Transfer Date, shall not be longer than 60 months.
(xxvi) Limitation on Franchise Receivables. As of each
Transfer Date, taking into account the Subsequent Receivables being
transferred on such Transfer Date, the aggregate principal Balance
(calculated as of the last day of the prior Collection Period or as of
the related Subsequent Cut-off Date, as applicable) of Receivables
selected from MCC's Franchise Finance Portfolio shall not exceed 20% of
the Pool Balance.
(xxvii) Minimum Weighted Average APR. As of each Transfer
Date, the weighted average APR (weighted based upon the Principal
Balance of each Receivable) of the Receivables, taking into account the
Subsequent Receivables being transferred on such Transfer Date, shall be
at least equal to the Minimum Weighted Average APR.
(xxviii) Selection Procedures. No selection procedures believed by
MCC to be adverse or beneficial to the interests of Funding or the Class A
Noteholders shall have been utilized in selecting the Subsequent
Receivables.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to the Obligation of Funding. The obligation of
Funding to purchase the Initial Receivables (with respect to the Closing Date)
or any Subsequent Receivables (with respect to any related Transfer Date), as
the case may be, is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of MCC hereunder shall be true and correct on the Closing Date
(with respect to the Initial Receivables) and on the applicable Transfer
Date (with respect to the related Subsequent Receivables) with the same
effect as if then made, and MCC shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date or the applicable
Transfer Date, as applicable.
(b) Computer Files Marked. MCC shall, at its own expense on or prior
to the Closing Date (with respect to the Initial Receivables) or the
relevant Transfer Date (with respect to the Subsequent Receivables), (i)
indicate in its Receivables Management System that receivables created in
connection with the Initial Receivables have been contributed, and in
connection with the Subsequent Receivables, have been either contributed or
sold (as provided in Section 2.02) to Funding pursuant to this Agreement
and transferred by Funding to the Trust
13
pursuant to the Transfer and Servicing Agreement and (ii) deliver to
Funding the Schedule of Receivables certified by the Chairman, the
President, a Vice President, the Secretary, the Treasurer or an Assistant
Treasurer of MCC to be true, correct and complete.
(c) Documents to be Delivered by MCC.
(i) Assignment. On each Transfer Date, with respect to the
related Subsequent Receivables, MCC will execute and deliver to
Funding a duly executed written assignment in substantially the form
of Exhibit A hereto (each, a "Supplemental Assignment").
(ii) Evidence of UCC Filings. On or prior to the Closing Date
and, as applicable, each Transfer Date, MCC shall deliver to Funding,
for its inspection and review, completed UCC requests for information,
dated on or before the Closing Date, or related Transfer Date, as the
case may be, listing all effective financing statements filed with the
Washington Secretary of State listing MCC as debtor.
(iii) Other Documents. On or prior to the Closing Date and, as
applicable, each Transfer Date, MCC shall execute and deliver to
Funding such other documents as Funding may reasonably request.
(d) Other Transactions. With respect to the Initial Receivables, the
transactions contemplated by the Transfer and Servicing Agreement and the
Indenture to be consummated on the Closing Date shall be consummated on
such date.
(e) MCC Solvent. As of the Closing Date or the related Transfer
Date, as applicable, (i) MCC shall not have been insolvent and shall not
become insolvent as a result of the conveyance of the Initial Receivables
on the Closing Date or the Subsequent Receivables on such Transfer Date,
(ii) MCC shall not have intended to incur or believed that it would incur
debts that would be beyond MCC's ability to pay as such debts matured,
(iii) such transfer shall not have been made with actual intent to hinder,
delay or defraud any Person and (iv) the assets of MCC shall not have
constituted unreasonably small capital to carry out its business as
conducted.
(f) Officer's Certificate. MCC shall have delivered to Funding an
Officer's Certificate confirming the satisfaction of each condition
specified in this Section 4.01.
SECTION 4.02. Conditions to Obligation of MCC with Respect to Initial
Receivables. The obligation of MCC to contribute the Initial Receivables to
Funding is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of Funding hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and Funding shall have performed
all obligations to be performed by it hereunder on or prior to the Closing
Date.
(b) Receivables Purchase Price. On the Closing Date, Funding shall
have accepted the capital contribution specified in Section 2.01.
SECTION 4.03. Conditions to Obligation of MCC With Respect to Subsequent
Receivables. The obligation of MCC to transfer the Subsequent Receivables to
Funding on any Transfer Date is subject to the satisfaction of the following
conditions:
14
(a) Representations and Warranties True. The representations and
warranties of Funding hereunder shall be true and correct on such Transfer
Date with the same effect as if then made, and Funding shall have performed
all obligations to be performed by it hereunder on or prior to such
Transfer Date.
(b) Receivables Consideration. On such Transfer Date, Funding shall
have delivered to MCC the purchase price specified in Section 2.02.
SECTION 4.04. Subordination of Liens on Financed Equipment.
Notwithstanding the time of the making of any Component Receivable or filing
of the Component Lien, and notwithstanding anything to the contrary
whatsoever in any Master Receivable Agreement, this Agreement, the Transfer
and Servicing Agreement or the Indenture, or any other document or agreement,
MCC's rights and remedies in the Financed Equipment under the Master
Receivable Agreement or otherwise in and to the Financed Equipment are hereby
expressly made subject and subordinate in all respects to the prior payment
in full of the Receivables. MCC agrees not to accept any payment on account
of, or exercise its right to foreclose upon or exercise any other right or
remedy with respect to the Financed Equipment, until (i) the related
Receivable has been paid in full or (ii) the related first priority lien on
the Financed Equipment assigned to Funding pursuant to Section 2.01 has been
foreclosed upon or released.
ARTICLE V
COVENANTS OF MCC
MCC covenants with Funding as follows; provided, however, that to the
extent that any provision of this Article conflicts with any provision of the
Transfer and Servicing Agreement, the Transfer and Servicing Agreement shall
govern:
15
SECTION 5.01. Protection of Right, Title and Interest.
(a) Further Assurances. MCC shall take all actions to preserve and
protect the right, title and interest of Funding in and to the Receivables
and the other property transferred hereunder.
(b) Name Change. Within 15 days after MCC makes any change in its name,
identity or corporate structure, MCC shall give Funding notice of any such
change.
SECTION 5.02. Other Liens or Interests. Except for the conveyances
hereunder MCC will not sell, pledge, assign or transfer to any Person, or grant,
create, incur, assume or suffer to exist any Lien on, any interest in, to and
under the Receivables, and MCC shall defend the right, title and interest of
Funding in, to and under the Receivables against all claims of third parties
claiming through or under MCC; provided, however, that MCC's obligations under
this Section shall terminate one year and one day after the termination of the
Trust pursuant to the Trust Agreement.
SECTION 5.03. Chief Executive Office. During the term of the Receivables,
MCC will maintain its chief executive office in one of the United States, except
Louisiana or Vermont.
SECTION 5.04. Corporate Existence.
(a) During the term of this Agreement, MCC will keep in full force and
effect its existence, rights and franchises as a corporation under the laws
of Delaware and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic
Documents and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the Transfer and Servicing
Agreement and the transactions contemplated hereby.
(b) MCC will not take any action or fail to take any action if such act or
omission would cause Funding not to observe the covenants set forth in Section
6.02(b) of this Agreement or to violate the provisions of Funding's certificate
of incorporation.
(c) MCC agrees that its business shall be conducted as follows, and MCC
shall not take any action or fail to take any action if such act or omission
would cause its business not to be conducted as follows:
(i) Except as expressly permitted by the Transfer and Servicing
Agreement with respect to collections on the Receivables prior to the
transfer of such collections to the Collection Account, MCC's funds will
not be commingled with those of Funding, and MCC shall maintain bank
accounts separate from those of Funding.
(ii) MCC shall maintain records permitting a determination on a daily
basis of the amount and location of any of its funds which are commingled
as permitted under subsection (i) above and subsection 6.02(b)(iv) below.
16
(iii) The data and records (including computer records) used by MCC
in the collection and administration of the Receivables shall reflect
Funding's ownership interest therein.
(d) MCC will each furnish to Funding on or before April 30 of each year
for so long as any Note remains outstanding an Officer's Certificate to the
effect that all of its obligations under this Section 5.04 have been fulfilled
throughout the preceding calendar year, or, if there has been any default in the
fulfillment of any such obligations, specifying each such default known to the
signer thereof and the nature and status thereof.
(e) MCC will not transfer or assign any interest in Funding except
pursuant to an instrument under which the transferee or assignee of such
interest expressly assumes the performance of all covenants of MCC to be
performed or observed under this Section 5.04.
(f) The annual audited consolidated financial statements that include
MCC will reflect the results of the issuance of the Notes in accordance with
generally accepted accounting principles and, to the extent applicable, also
disclose that the assets of Funding are not available to pay creditors of MCC
or any other Affiliate of MCC.
SECTION 5.05. Indemnification. MCC shall indemnify Funding for any
liability as a result of the failure of a Receivable to be originated in
compliance, in all material respects, with all requirements of law and for any
breach of any of its representations and warranties contained herein, other than
the representations and warranties made pursuant to Section 3.02(b) for which
the sole remedy shall be provided by Section 7.02 hereof; provided, however,
that MCC shall indemnify Funding for any liability arising from a breach of
Section 3.02(b)(ii) and, (iii). These indemnity obligations shall be in
addition to any obligation that MCC may otherwise have.
ARTICLE VI
COVENANTS OF FUNDING
Funding covenants with MCC as follows; provided, however, that to the
extent that any provision of this Article conflicts with any provision of the
Transfer and Servicing Agreement, the Transfer and Servicing Agreement shall
govern:
SECTION 6.01. Protection of Right, Title and Interest. Funding shall
cooperate fully with MCC in connection with the obligations set forth in
Section 5.01 above and will execute any and all documents reasonably required
to fulfill the purpose of that Section.
SECTION 6.02. Corporate Existence.
(a) During the term of this Agreement, Funding will keep in full force
and effect its existence, rights and franchises as a corporation under the
laws of Delaware and will obtain and preserve its qualification to do
17
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or
appropriate to the proper administration of this Agreement and the Transfer
and Servicing Agreement and the transactions contemplated hereby.
(b) Funding agrees that its business shall be conducted as follows, and
Funding shall not take any action or fail to take any action if such act or
omission would cause its business not to be conducted as follows:
(i) Funding will maintain both an office at which its business is and
will be conducted and a telephone number separate from MCC or any of MCC's
Affiliates.
(ii) At least one of Funding's directors shall be a person who is not
and will not be a director, officer or employee of MCC or any of MCC's
Affiliates.
(iii) Funding will maintain corporate records and books and accounts
separate from those of MCC or any of MCC's Affiliates.
(iv) Except as expressly permitted by the Transfer and Servicing
Agreement with respect to collections on the Receivables prior to the
transfer of such collections to the Collection Account, Funding's funds
will not be commingled with those of MCC or any of MCC's Affiliates, and
Funding shall maintain bank accounts separate from those of MCC or any of
MCC's Affiliates.
(v) The Board of Directors of Funding will take appropriate corporate
action (including without limitation holding meetings or acting by
unanimous consent) to authorize all of Funding's corporate actions, and
minutes shall be maintained by Funding separate and apart from those of MCC
or any of MCC's Affiliates.
(vi) Funding shall at all times be adequately capitalized to engage
in the transactions contemplated at its formation.
(vii) Funding shall not incur or guarantee any debt other than under
the Basic Documents, nor shall Funding make any loans, other than as
permitted by Funding's Certificate of Incorporation.
(viii) Funding shall not engage in any transaction with MCC or any of
MCC's Affiliates on terms more favorable than in a similar transaction
involving a third party.
18
(ix) Funding shall at all times use its own stationery.
(x) Funding shall always be described as a separate corporation, and
never as a department, division or otherwise of MCC or any of MCC's
Affiliates.
(xi) Funding shall act solely in its own corporate name and through
its own authorized officers and agents.
(xii) The data and records (including computer records) used by
Funding or MCC in the collection and administration of the Receivables
shall reflect Funding's ownership interest therein.
(xiii) Other than organizational expenses, Funding shall be
responsible for the payment of all expenses, indebtedness and other
obligations incurred by it.
(xiv) None of Funding's funds nor any of the funds held by MCC on
behalf of Funding or the holders of the Certificates or the Notes shall be
invested in securities issued by MCC or any of MCC's Affiliates.
(c) Funding will furnish to MCC on or before April 30 of each year,
for so long as any Note remains outstanding, an Officer's Certificate to the
effect that all of its obligations under this Section 6.02 have been fulfilled
throughout the preceding calendar year, or, if there has been any default in the
fulfillment of any such obligations, specifying each such default known to the
signer thereof and the nature and status thereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Obligations of MCC. The obligations of MCC under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 7.02. Repurchase Events. (a) MCC hereby covenants and agrees with
Funding for the benefit of Funding, the Indenture Trustee, the Noteholders, the
Owner
19
Trustee and the Owner that the occurrence of a material breach of any of MCC's
representations and warranties contained in Section 3.02(b) in respect of a
Receivable shall constitute an event obligating MCC to repurchase such
Receivable ("Repurchase Events"), at the Acquisition Amount from Funding.
(b) Other than as provided in Section 5.05, these repurchase obligations
of MCC shall constitute the sole remedies to Funding, the Indenture Trustee, the
Noteholders, the Owner Trustee and the Owner against MCC with respect to any
Repurchase Event.
(c) The terms and conditions of Funding's obligation to enforce its right
of repurchase pursuant to this Section 7.02 shall be governed by the terms of
the Transfer and Servicing Agreement.
SECTION 7.03. Funding Assignment of Repurchased Receivables. With respect
to all Receivables repurchased by MCC pursuant to this Agreement, Funding shall
assign, without recourse, representation or warranty, to MCC all Funding's
right, title and interest in and to such Receivables, and all security and
documents relating thereto.
SECTION 7.04. Trust. MCC acknowledges and agrees that (a) Funding will,
pursuant to the Transfer and Servicing Agreement, sell the Receivables to the
Trust and assign its rights under this Agreement to the Trust, (b) the Trust
will, pursuant to the Indenture, assign such Receivables and such rights to the
Indenture Trustee as security and (c) the representations and warranties
contained in this Agreement and the rights of Funding under this Agreement,
including under Section 7.02, are intended to benefit the Trust, the Owner and
the Noteholders (and may be enforced directly by the Indenture Trustee on behalf
of the Noteholders and by the Owner Trustee on behalf of the Trust or the
Owner). MCC hereby consents to all such sales and assignments.
SECTION 7.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, by a written amendment duly
executed and delivered by MCC and Funding, without the consent of the
Noteholders or the Owner, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the Owner; provided
that such amendment will not, as evidenced by an Officer's Certificate of
Funding, materially and adversely affect the interest of any Noteholder or the
Owner. This Agreement may also be amended by MCC and Funding, with prior
written notice to the Rating Agencies, with the consent of the holders of the
Notes evidencing a majority in the Outstanding Amount of the Notes for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
Noteholders; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of holders of Class A Notes or (ii) reduce the aforesaid
percentage of the Class A Notes which are required to consent to any such
amendment, without the consent of the holders of all the outstanding Class A
Notes.
20
SECTION 7.06. Waivers. No failure or delay on the part of Funding in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude and any other or further exercise
thereof or the exercise of any other power, right or remedy.
SECTION 7.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of MCC, to MetLife Capital Corporation, ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) in the case of Funding, to
MetLife Capital Funding Corp. III, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Treasurer; (c) in the case of Moody's, to ▇▇▇▇▇'▇
Investors Service, Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and (d) in the case of Standard & Poor's, to Standard & Poor's
Ratings Services, ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of Asset Backed Surveillance Department; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
SECTION 7.08. Costs and Expenses. MCC will pay all expenses incident to
the performance of its obligations under this Agreement, and MCC agrees to pay
all reasonable out-of-pocket costs and expenses of Funding, in connection with
the perfection as against third parties of Funding's right, title and interest
in and to the Receivables and the enforcement of any obligation of MCC
hereunder.
SECTION 7.09. Representations of MCC and Funding. The respective
agreements, representations, warranties and other statements by MCC and Funding
set forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the closing under Section 2.02.
SECTION 7.10. Confidential Information. Funding agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of Funding's rights hereunder, under
the Receivables, under the Transfer and Servicing Agreement or the Indenture or
any other Basic Document or as required by any of the foregoing or by law.
SECTION 7.11. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
SECTION 7.12. Governing Law. THIS AGREEMENT AND THE SUPPLEMENTAL
ASSIGNMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
21
SECTION 7.13. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
METLIFE CAPITAL FUNDING CORP. III
By:___________________________
Name:
Title:
METLIFE CAPITAL CORPORATION
By:___________________________
Name:
Title:
EXHIBIT A
SUPPLEMENTAL ASSIGNMENT
(As required by Section 4.01(c) of
the Contribution and Sale Agreement)
SUPPLEMENTAL ASSIGNMENT NO. ____ dated as of __________, 199_, by and
between METLIFE CAPITAL CORPORATION, a Delaware corporation ("MCC"), and METLIFE
CAPITAL FUNDING CORP. III, a Delaware corporation ("Funding"), pursuant to the
Contribution and Sale Agreement referred to below.
WITNESSETH:
WHEREAS, MCC and Funding are parties to a Contribution and Sale Agreement,
dated as of __________ __, 199__ (hereinafter as such agreement may have been,
or may from time to time be, amended, supplemented or otherwise modified, the
"Contribution and Sale Agreement");
WHEREAS, pursuant to the Contribution and Sale Agreement, MCC wishes to
transfer Subsequent Receivables (as defined in the Contribution and Sale
Agreement), whether now existing or hereafter created, to Funding pursuant to
the Contribution and Sale Agreement; and
WHEREAS, Funding is willing to accept such transfer subject to the terms
and conditions hereof.
NOW, THEREFORE, MCC and Funding hereby agree as follows:
1. Defined Terms. Each capitalized term used herein shall have the
meaning specified in the Contribution and Sale Agreement unless otherwise
defined herein.
"Transfer Date" shall mean, with respect to the Subsequent Receivables
transferred hereby, __________, 199_.
"Subsequent Cut-off Date" shall mean, with respect to the Subsequent
Receivables transferred hereby, __________ __, 199_.
2. Conveyance of Subsequent Receivables. MCC hereby sells, transfers,
assigns, sets over and otherwise conveys to Funding, without recourse (subject
to the obligations herein) all right, title and interest of MCC in and to the
following, whether now existing or hereafter created:
A-1
(i) all right, title and interest of MCC, in and to the Subsequent
Receivables listed on Schedule I attached hereto and made a part hereof and
all monies (including accrued interest) due or to become due, or received
thereunder on or after the Subsequent Cut-off Date;
(ii) the interest of MCC in the Financed Equipment granted by
Obligors pursuant to the Subsequent Receivables;
(iii) the interest and rights of MCC in any proceeds with respect to
the Subsequent Receivables from claims on any physical damage, credit life
or disability insurance policies covering Financed Equipment or Obligors
with respect to Financed Equipment; and
(iv) the proceeds of any of the foregoing.
3. Acceptance by Funding. Funding hereby acknowledges its acceptance of
all right, title and interest to the property, now existing and hereafter
created, conveyed to Funding pursuant to Section 2 of this Supplemental
Assignment, and declares that it shall maintain such right, title and interest.
Funding shall pay on the Transfer Date to MCC the purchase price, in accordance
with Section 2.02(b) of the Contribution and Sale Agreement, for such property.
4. Representations and Warranties of the Parties. Each of MCC and
Funding hereby makes the representations and warranties required by the
Contribution and Sale Agreement to be made as of the Transfer Date.
5. Ratification of the Contribution and Sale Agreement. The Contribution
and Sale Agreement is hereby ratified, and all references to the "Contribution
and Sale Agreement", to "this Agreement" and "herein" shall be deemed from and
after the Transfer Date to be a reference to the Contribution and Sale Agreement
as supplemented by this Supplemental Assignment. Except as expressly amended
hereby, all the representations, warranties, terms, covenants and conditions of
the Contribution and Sale Agreement shall remain unamended and shall continue to
be, and shall, remain, in full force and effect in accordance with its terms and
except as expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or consent to non-compliance with any
term or provision of the Contribution and Sale Agreement.
6. Counterparts. This Supplemental Assignment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
7. Governing Law. This Supplemental Assignment shall be goverened by and
construed in accordance with the laws of the State of New York.
A-2
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Assignment to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
METLIFE CAPITAL CORPORATION
By:______________________
Name:
Title:
METLIFE CAPITAL FUNDING CORP. III
By:______________________
Name:
Title:
A-3
SCHEDULE A
SCHEDULE OF RECEIVABLES