METLIFE CAPITAL EQUIPMENT LOAN TRUST [SERIES]
____% CLASS A NOTES
METLIFE CAPITAL FUNDING CORP. III
FORM OF CLASS A NOTE UNDERWRITING AGREEMENT
[Date]
[Underwriter]
[Address]
Ladies and Gentlemen:
1. Introductory. MetLife Capital Funding Corp. III, a Delaware
corporation (the "Transferor"), proposes to cause MetLife Capital Equipment Loan
Trust [Series] (the "Trust") to issue and sell $__________ aggregate principal
amount of ____% Class A Notes (the "Class A Notes"), each representing a
fractional undivided interest in the Trust, to [Underwriter] (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 industrial
equipment (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 Notes will be issued pursuant to the Indenture to be dated as of __________
____, 19__ (as amended and supplemented from time to time, the "Indenture"),
between the Trust and [Indenture Trustee] (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 __________ ____, 19__ (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 __________ ____, 19__ (as amended and supplemented
from time to time, the "Trust Agreement"), between the Transferor and [Owner
Trustee], a [__________] 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 Securities. 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 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 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
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 which describes
the 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
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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 the Transferor makes 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 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 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
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interests of the holders of the Notes, other than as set forth or contemplated
in the Prospectus.
(d) The computer tape of the Initial Receivables created as of
__________ ____, 19__, 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 its activities require such
qualification, 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.
The Transferor's assignment and delivery of the Receivables to the
Trust as of the Closing Date will vest in the Trust all of the Transferor's
right, title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
The Transferor'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.
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 __________% of the principal amount thereof,
$__________ in principal amount of the Class A Notes. Delivery of and payment
for the Notes shall be made at the office
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of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
on __________ ____, 19__ (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 ▇▇▇▇▇▇,
Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇
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 "▇▇▇▇▇▇/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 ▇▇▇▇▇▇/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
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,
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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, 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
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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 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.
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(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.
(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;
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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 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
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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 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.
(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
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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 Notes to the Underwriter, (iii) the fees and disbursements of the MCC
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 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
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 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.
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(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
[__________], 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 ____________
[Corporate Counsel of MCC] and [__________], counsel to MCC, the Transferor and
the Trust 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 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
12
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 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
13
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 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
14
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 (2) the Transferor's
rights to the Receivables would not be impaired by the operation of
Section 362(a) of the Bankruptcy Code.
15
(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 sale of the Receivables and the
proceeds thereof to the Transferor, MCC had a first priority perfected
security interest in the Receivables and the proceeds thereof. Immediately
prior to the transfer of the Receivables and the proceeds thereof to the
Trust, the Transferor had a first priority perfected security 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 (viii) shall be subject to
customary UCC exceptions and qualifications.
(xix) The Transfer and Servicing Agreement, the Trust Agreement, the
Indenture, the Administration Agreement and
16
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.
(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
17
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.
(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
18
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.
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 Orrick,
19
▇▇▇▇▇▇▇▇▇▇ & Sutcliffe 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, in its capacity as
Special Counsel to the Trust, shall have delivered an opinion with respect to
the characterization of the transfer of the Receivables.
[(g) The Underwriter shall have received an opinion addressed to it
of [__________] in its capacity as Special [Washington] Tax Counsel for the
Trust, substantially to the effect that the statements in the Prospectus under
the heading "Summary of Terms--Tax Status" (to the extent relating to
[Washington] income tax consequences) and in the Prospectus under the heading
"Certain State Tax Considerations" accurately describe the material income tax
consequences in the State of [Washington] to holders of the Class A Notes.]
(h) The Underwriter shall have received an opinion addressed to it
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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.
(i) 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 [state banking corporation] [national
banking association] duly organized and validly existing under the
[Federal law of the United States of America] [laws of the State of
__________].
(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
20
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
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.
21
(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.
(j) The Underwriter shall have received an opinion addressed to it,
the Transferor and the Servicer of [__________], 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.
22
(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, result in a breach or violation of or constitute a default
under, the Articles of Association or By-laws of the Owner Trustee.
(k) 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.
(l) 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.
(m) The Class A Notes shall have been rated at least "AAA" by
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and at least "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc.
(n) 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.
23
(o) On the Closing Date, $__________ aggregate principal amount of
Class A ____% 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.
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 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,
24
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.
(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
25
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 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 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
26
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 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
27
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 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 [__________], Attention: [__________]; if sent to the Transferor, will
be mailed, delivered or telegraphed, and confirmed to it at MetLife Capital
Funding Corp. III, [Address], Attention: [__________]; if sent to MCC, will be
mailed, delivered or telegraphed, and confirmed to it at MetLife Capital
Corporation, [Address], Attention: [__________]; provided, however, that any
notice to the Underwriter pursuant to Section 8 will be mailed, delivered or
telegraphed and confirmed to the Underwriter. 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.
28
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.
29
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.
[UNDERWRITER]
By
--------------------------------
Name:
Title:
[Signature Page to the Class A Note Underwriting Agreement]
30
[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.]
A-1