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EXHIBIT 1.1
November 28, 1995
Prudential Securities Incorporated
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prudential Securities Secured Financing Corporation (the
"Company") hereby confirms its agreement to sell certain equipment lease backed
certificates to Prudential Securities Incorporated (the "Underwriter") as
described herein. The certificates will be secured by the assets of a trust fund
(the "Trust Fund") consisting primarily of a segregated pool (the "Receivable
Pool") of finance leases, installment sale contracts and loan contracts (the
"Leases") and underlying equipment leased thereby (the "Equipment," together
with the Leases, the "Receivables"). The Company intends to purchase the
Receivables from Phoenix Receivables II, Inc. (the "Phoenix Finance
Subsidiary"), pursuant to the Receivables Transfer Agreement to be dated as of
November 1, 1995 (the "Receivables Transfer Agreement") among the Company and
the Phoenix Finance Subsidiary. The Leases shall have, as of the close of
business on November 1, 1995 (the "Cut-off Date"), a Lease Principal Balance (as
defined in the Pooling and Servicing Agreement) of not more than $29,756,661.70.
The certificates are to be issued pursuant to the Pooling and Servicing
Agreement to be dated as of November 1, 1995 (the "Pooling and Servicing
Agreement") among Phoenix Leasing Incorporated, as servicer of the Receivables,
the Company, as depositor and Bankers Trust Company, as trustee (the "Trustee").
All capitalized terms used but not otherwise defined herein
have the respective meanings set forth in the Pooling and Servicing Agreement.
The phrase "this Agreement" shall refer to this letter by the Company to
Prudential Securities Incorporated ("PSI") as agreed to and accepted by PSI as
of the date hereof.
1. Certificates. The certificates will be issued in classes as
follows: (i) a senior class consisting of the Class A Certificates (the "Class A
Certificates") and (ii) two classes of subordinate certificates with respect to
the Class A Certificates (the "Class B Certificates" and the "Trust
Certificate"). The Class B Certificates and the Trust Certificate are not being
sold hereby.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and covenants with, the Underwriter that:
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A. The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 33-84918) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of Equipment Lease Backed Securities (issuable in series), which
registration statement, as amended at the date hereof, has become effective.
Such registration statement, as amended to the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all
other material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date
hereof to the prospectus dated December 2, 1994 relating to the Class A
Certificates and the method of distribution thereof and has previously advised
the Underwriter of all further information (financial and other) with respect to
the Class A Certificates to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof, is hereinafter
called the "Registration Statement"; such prospectus dated December 21, 1994, in
the form in which it will be filed with the Commission pursuant to Rule
424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such
supplement dated the date hereof to the Basic Prospectus, in the form in which
it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the
Prospectus Supplement together are hereinafter called the "Prospectus." Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus
Supplement." The Company will file with the Commission within fifteen days of
the issuance of the Class A Certificates a report on Form 8-K setting forth
specific information concerning the related Receivables (the "8-K").
B. As of the date hereof, when the Registration Statement
became effective, when the Prospectus Supplement is first filed pursuant to Rule
424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any
other amendment to the Registration Statement becomes effective, and when any
supplement to the Prospectus is filed with the Commission, and at the Closing
Date, (i) the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act and the rules
thereunder and (ii) the Registration Statement, as amended as of any such time,
did not and will not contain any untrue statement of a material fact and did not
and will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the Prospectus, as
amended or supplemented as of any such time, did not and will not contain an
untrue statement of a material fact and did not and will not omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to the information
contained in or omitted from the
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Registration Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with the information furnished in
writing to the Company by or on behalf of the Underwriter specifically for use
in connection with the preparation of the Registration Statement and the
Prospectus.
C. The Company is duly organized, validly existing and in good
standing under the laws of the State of Delaware, has full power and authority
(corporate and other) to own its properties and conduct its business as now
conducted by it, and as described in the Prospectus, and is duly qualified to do
business in each jurisdiction in which it owns or leases equipment (to the
extent such qualification is required by applicable law) or in which the conduct
of its business requires such qualification except where the failure to be so
qualified does not involve (i) a material risk to, or a material adverse effect
on, the business, properties, financial position, operations or results of
operations of the Company or (ii) any risk whatsoever as to the enforceability
of any Lease.
D. There are no actions, proceedings or investigations pending,
or, to the knowledge of the Company, threatened, before any court, governmental
agency or body or other tribunal (i) asserting the invalidity of this Agreement,
the Class A Certificates, the Receivables Transfer Agreement or the Pooling and
Servicing Agreement, (ii) seeking to prevent the issuance of the Class A
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Receivables Transfer Agreement or the Pooling and Servicing
Agreement, (iii) which may, individually or in the aggregate, materially and
adversely affect the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, the Class A Certificates, the
Receivables Transfer Agreement, or the Pooling and Servicing Agreement, or (iv)
which may affect adversely the federal income tax attributes of the Class A
Certificates as described in the Prospectus.
E. The execution and delivery by the Company of this Agreement,
the Receivables Transfer Agreement and the Pooling and Servicing Agreement are
within the corporate power of the Company and have been, or will be, prior to
the Closing Date duly authorized by all necessary corporate action on the part
of the Company and the execution and delivery of such instruments, the
consummation of the transactions therein contemplated and compliance with the
provisions thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute or any agreement
or instrument to which the Company or any of its affiliates is a party or by
which it or any of them is bound or to which any of the property of the Company
or any of its affiliates is subject, the Company's charter or bylaws, or any
order, rule or regulation of any court, governmental agency or body or other
tribunal having jurisdiction over the Company, any of its affiliates or any of
its or their
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properties; and no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body or other tribunal is required for the
consummation of the transactions contemplated by this Agreement or the
Prospectus in connection with the issuance and sale of the Class A Certificates
by the Company. Neither the Company nor any of its affiliates is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Company or any of its affiliates, which materially and
adversely affects, or may in the future materially and adversely affect, (i) the
ability of the Company to perform its obligations under this Agreement, the
Pooling and Servicing Agreement or the Receivables Transfer Agreement or (ii)
the business, operations, results of operations, financial position, income,
properties or assets of the Company.
F. This Agreement has been duly executed and delivered by the
Company, and the Pooling and Servicing Agreement and the Receivables Transfer
Agreement will be duly executed and delivered by the Company, and each
constitutes and will constitute the legal, valid and binding obligation of the
Company enforceable in accordance with their respective terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, and (ii) general principles of equity,
whether enforcement is sought in a proceeding at law or in equity.
G. The Class A Certificates will conform in all material
respects to the description thereof to be contained in the Prospectus and will
be duly and validly authorized and, when duly and validly executed,
authenticated, issued and delivered in accordance with the Pooling and Servicing
Agreement and sold to the Underwriter as provided herein, will be validly issued
and outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
H. On the Closing Date, the Receivables will conform in all
material respects to the description thereof contained in the Prospectus and the
representations and warranties contained in this Agreement will be true and
correct in all material respects. The representations and warranties set out in
the Pooling and Servicing Agreement are hereby made to the Underwriter as though
set out herein, and at the dates specified in the Pooling and Servicing
Agreement, such representations and warranties were or will be true and correct
in all material respects.
I. The Company possesses all material licenses, certificates,
permits or other authorizations issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it and as described in the Prospectus and there are no proceedings,
pending
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or, to the best knowledge of the Company, threatened, relating to the revocation
or modification of any such license, certificate, permit or other authorization
which singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the business,
operations, results of operations, financial position, income, property or
assets of the Company.
J. Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement, the Pooling and Servicing
Agreement, the Receivables Transfer Agreement, or the execution and issuance of
the Class A Certificates have been or will be paid at or prior to the Closing
Date.
K. There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company or its subsidiaries, taken as a whole, from July 15, 1994.
L. This Agreement, the Pooling and Servicing Agreement and the
Receivables Transfer Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
M. The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification of
the Class A Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
3. Agreements of the Underwriter. The Underwriter agrees with
the Company that upon the execution of this Agreement and authorization by the
Underwriter of the release of the Class A Certificates, the Underwriter shall
offer the Class A Certificates for sale upon the terms and conditions set forth
in the Prospectus as amended or supplemented.
4. Purchase, Sale and Delivery of the Class A Certificates. The
Company hereby agrees, subject to the terms and conditions hereof, to sell the
Class A Certificates to the Underwriter, who, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, hereby agrees to purchase the entire aggregate principal
amount of the Class A Certificates. At the time of issuance of the Class A
Certificates, the Receivables will be transferred by the Company to the Trustee
on behalf of the Certificateholders pursuant to the Pooling and Servicing
Agreement.
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The Class A Certificates to be purchased by the Underwriter
will be delivered by the Company to the Underwriter (which delivery shall be
made through the facilities of The Depository Trust Company ("DTC")) against
payment of the purchase price therefor, equal to $21,423,000 with respect to the
Class A Certificates, plus interest accrued at the Class A Certificate Rate on
the Class A Certificates from November 25, 1995 to November 29, 1995, by a same
day federal funds wire payable to the order of the Company.
Settlement shall take place at the offices of Xxxxx Xxxxxxxxxx,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 9 a.m., on November 30, 1995,
or at such other time thereafter as the Underwriter and the Company determine
(such time being herein referred to as the "Closing Date"). The Class A
Certificates will be prepared in definitive form and in such authorized
denominations as the Underwriter may request, registered in the name of Cede &
Co., as nominee of DTC.
The Company agrees to have the Class A Certificates available
for inspection and review by the Underwriter in New York City not later than 10
a.m. New York City time on the business day prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriter that:
A. The Company will promptly advise the Underwriter and its
counsel (i) when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Class A
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus after the date hereof and
prior to the Closing Date for the Class A Certificates unless the Company has
furnished the Underwriter and its counsel copies of such amendment or supplement
for their review prior to filing and will not file any such proposed amendment
or supplement to which the Underwriter reasonably objects, unless such filing is
required by law. The Company will use its best efforts to prevent the issuance
of any stop order suspending the effectiveness of the Registration Statement
and, if issued, to obtain as soon as possible the withdrawal thereof.
B. If, at any time during the period in which the Prospectus is
required by law to be delivered, any event occurs as a result of which the
Prospectus as then amended or supplemented
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would include any 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 shall be
necessary to amend or supplement the Prospectus to comply with the Act or the
rules under the Act, the Company will promptly prepare and file with the
Commission, subject to Paragraph A of this Section 5, an amendment or supplement
that will correct such statement or omission or an amendment that will effect
such compliance and, if such amendment or supplement is required to be contained
in a post-effective amendment to the Registration Statement, will use its best
efforts to cause such amendment of the Registration Statement to be made
effective as soon as possible.
C. The Company will furnish to the Underwriter, without charge,
executed copies of the Registration Statement (including exhibits thereto) and,
so long as delivery of a Prospectus by the Underwriter or a dealer may be
required by the Act, as many copies of the Prospectus, as amended or
supplemented, and any amendments and supplements thereto as the Underwriter may
reasonably request. The Company will pay the expenses of printing all offering
documents relating to the offering of the Class A Certificates.
X. Xx soon as practicable, but not later than sixteen months
after the effective date of the Registration Statement, the Company will make
generally available to Class A Certificateholders an earnings statement covering
a period of at least 12 months beginning after the effective date of the
Registration Statement which will satisfy the provisions of Section 11(a) of the
Act and, at the option of the Company, will satisfy the requirements of Rule 158
under the Act.
E. During a period of 20 calendar days from the date as of
which this Agreement is executed, neither the Company nor any affiliate of the
Company will, without the Underwriter's prior written consent (which consent
shall not be unreasonably withheld), enter into any agreement to offer or sell
lease backed notes, except pursuant to this Agreement.
F. So long as any of the Class A Certificates are outstanding,
the Company will cause to be delivered to the Underwriter (i) all documents
required to be distributed to the Class A Certificateholders and (ii) from time
to time, any other information filed with any government or regulatory authority
that is otherwise publicly available, as the Underwriter may reasonably request.
G. The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all expenses
in connection with the transactions contemplated herein, including but not
limited to the expenses of printing (or otherwise reproducing) all documents
relating to the offering, the fees and disbursements of its counsel
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and expenses of the Underwriter incurred in connection with (i) the issuance and
delivery of the Class A Certificates, (ii) preparation of all documents
specified in this Agreement, (iii) any fees and expenses of the Trustee and (iv)
any fees charged by investment rating agencies for rating the Class A
Certificates.
H. The Company agrees that, so long as any of the Class A
Certificates shall be outstanding, it will deliver or cause to be delivered to
the Underwriter (i) the annual statement as to compliance delivered to the
Trustee pursuant to the Pooling and Servicing Agreement, (ii) the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to the Pooling and Servicing Agreement as soon as such statement is
furnished to the Company and (iii) any information and reports required to be
delivered by the Servicer pursuant to Article V of the Pooling and Servicing
Agreement.
I. The Company will enter into the Pooling and Servicing
Agreement and the Receivables Transfer Agreement and all related agreements on
or prior to the Closing Date.
J. The Company will endeavor to qualify the Class A
Certificates for sale to the extent necessary under any state securities or Blue
Sky laws in any jurisdictions as may be reasonably requested by the Underwriter,
if any, and will pay all expenses (including fees and disbursements of counsel)
in connection with such qualification and in connection with the determination
of the eligibility of the Class A Certificates for investment under the laws of
such jurisdictions as the Underwriter may reasonably designate, if any.
6. Conditions of the Underwriter's Obligation. The obligation
of the Underwriter to purchase and pay for the Class A Certificates as provided
herein shall be subject to the accuracy as of the date hereof and the Closing
Date (as if made at the Closing Date) of the representations and warranties of
the Company contained herein (including those representations and warranties set
forth in the Pooling and Servicing Agreement and incorporated herein), to the
accuracy of the statements of the Company made in any certificate or other
document delivered pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to the following additional
conditions:
A. The Registration Statement shall have become effective no
later than the date hereof, and 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 threatened, and the Prospectus shall have
been filed pursuant to Rule 424(b).
B. The Underwriter shall have received the Pooling and
Servicing Agreement and the Class A Certificates in form and
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substance satisfactory to the Underwriter, duly executed by all signatories
required pursuant to the respective terms thereof.
C. The Underwriter shall have received the favorable opinion of
Xxxxx Xxxxxxxxxx, counsel to the Company with respect to the following
items, dated the Closing Date, to the effect that:
(a) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, and is qualified to do business in each
state necessary to enable it to perform its obligations under
the Pooling and Servicing Agreement. The Company has the
requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the
conditions of, this Agreement, the Pooling and Servicing
Agreement and the Receivables Transfer Agreement.
(b) This Agreement, the Pooling and Servicing
Agreement and the Receivables Transfer Agreement have been duly
and validly authorized, executed and delivered by the Company,
all requisite corporate action having been taken with respect
thereto, and each constitutes the valid, legal and binding
agreement of the Company, and would be enforceable against the
Company in accordance with their respective terms.
(c) Neither the transfer of the Receivables to the
Trustee, the issuance or sale of the Class A Certificates nor
the execution, delivery or performance by the Company of the
Pooling and Servicing Agreement, the Receivables Transfer
Agreement or this Agreement (A) conflicts or will conflict with
or results or will result in a breach of, or constitutes or
will constitute a default under, (i) any term or provision of
the certificate of incorporation or bylaws of the Company; (ii)
any term or provision of any material agreement, contract,
instrument or indenture, to which the Company is a party or is
bound; or (iii) any order, judgment, writ, injunction or decree
of any court or governmental agency or body or other tribunal
having jurisdiction over the Company; or (B) results in, or
will result in the creation or imposition of any lien, charge
or encumbrance upon the Trust Fund or upon the Class A
Certificates, except as otherwise contemplated by the Pooling
and Servicing Agreement.
(d) No consent, approval, authorization or order of,
registration or filing with, or notice to, courts, governmental
agency or body or other tribunal is required under the laws of
the State of New York, for the execution, delivery and
performance of the Pooling and
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Servicing Agreement, the Receivables Transfer Agreement, this
Agreement, or the offer, issuance, sale or delivery of the
Class A Certificates or the consummation of any other
transaction contemplated thereby by the Company, except such
which have been obtained.
(e) There are no actions, proceedings or
investigations pending or, to such counsel's knowledge,
threatened against the Company before any court, governmental
agency or body or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement, the
Receivables Transfer Agreement or the Class A Certificates (ii)
seeking to prevent the issuance of the Class A Certificates or
the consummation of any of the transactions contemplated by the
Pooling and Servicing Agreement, the Receivables Transfer
Agreement or this Agreement, (iii) which would materially and
adversely affect the performance by the Company of obligations
under, or the validity or enforceability of, the Class A
Certificates, the Pooling and Servicing Agreement, the
Receivables Transfer Agreement or this Agreement.
(f) Except as to any financial or statistical data
contained in the Registration Statement, to the best of such
counsel's knowledge, the Registration Statement does not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading.
(g) To the best of the knowledge of such counsel, the
Commission has not issued any stop order suspending the
effectiveness of the Registration Statement or any order
directed to any prospectus relating to the Class A Certificates
(including the Prospectus), and has not initiated or threatened
any proceeding for that purpose.
In rendering their opinions, the counsel described in this
Paragraph C may rely, as to matters of fact, on certificates of responsible
officers of the Company, the Trustee and public officials. Such opinions may
also assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Company.
D. The Underwriter shall have received a letter from Xxxxxx
Xxxxxxxx, dated on or before the Closing Date, in form and substance
satisfactory to the Underwriter and counsel for the Underwriter, to the effect
that they have performed certain specified procedures requested by the
Underwriter with respect to the information set forth in the Prospectus and
certain matters relating to the Company.
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E. The Class A Certificates shall have been rated "A" by Duff &
Xxxxxx Credit Rating Company, and such rating shall not have been rescinded. The
Underwriter and counsel for the Underwriter shall have received copies of any
opinions of counsel supplied to the rating organizations relating to any matters
with respect to the Class A Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriter or accompanied by reliance letters
to the Underwriter or shall state that the Underwriter may rely upon them.
F. The Underwriter shall have received from the Company a
certificate, signed by the president, a senior vice president or a vice
president of the Company, dated the Closing Date, to the effect that the signer
of such certificate has carefully examined the Registration Statement, the
Pooling and Servicing Agreement, this Agreement and the Receivables Transfer
Agreement and that, to the best of his or her knowledge based upon reasonable
investigation:
1. the representations and warranties of the Company in this
Agreement, as of the Closing Date, the Pooling and Servicing Agreement,
the Receivables Transfer Agreement and in all related agreements, as of
the date specified in such agreements, are true and correct, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
2. there are no actions, suits or proceedings pending, or to
the best of such officer's knowledge, threatened against or affecting
the Company which if adversely determined, individually or in the
aggregate, would be reasonably likely to adversely affect the Company's
obligations under the Pooling and Servicing Agreement, the Receivables
Transfer Agreement or this Agreement in any material way; and no
merger, liquidation, dissolution or bankruptcy of the Company is
pending or contemplated;
3. the information contained in the Registration Statement
relating to the Company and the Receivables is true and accurate in all
material respects and nothing has come to his or her attention that
would lead such officer to believe that the Registration Statement
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein not misleading;
4. the information set forth in the List of Leases required to
be furnished pursuant to the Pooling and Servicing Agreement is true
and correct in all material respects;
5. there has been no amendment or other document filed
affecting the articles of incorporation or bylaws of the Company since
July 15, 1994, and no such amendment has been
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authorized. No event has occurred since July 15, 1994, which has
affected the good standing of the Company under the laws of the State
of Delaware;
6. there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
July 15, 1994;
7. each person who, as an officer or representative of the
Company, signed or signs the Registration Statement, this Agreement,
the Pooling and Servicing Agreement, the Receivables Transfer Agreement
or any other document delivered pursuant hereto, on the date of such
execution, or on the Closing Date, as the case may be, in connection
with the transactions described in the Pooling and Servicing Agreement
and this Agreement was, at the respective times of such signing and
delivery, and is now, duly elected or appointed, qualified and acting
as such officer or representative, and the signatures of such persons
appearing on such documents are their genuine signatures.
The Company shall attach to such certificate a true and correct
copy of its articles of incorporation and bylaws which are in full force and
effect on the date of such certificate, and a certified true copy of the
resolutions of its Board of Directors with respect to the transactions
contemplated herein.
G. The Underwriter shall have received a favorable opinion of
counsel to the Trustee, dated the Closing Date and in form and substance
satisfactory to the Underwriter, to the effect that:
1. the Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York
and has the power and authority to enter into and to take all actions
required of it under the Pooling and Servicing Agreement;
2. the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes the
legal, valid and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms, except as enforceability
thereof may be limited by (A) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, as such laws would apply in the event of a bankruptcy,
insolvency or reorganization or similar occurrence affecting the
Trustee, and (B) general principles of equity regardless of whether
such enforcement is sought in a proceeding at law or in equity;
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3. no consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part
of the Trustee in connection with its execution and delivery of the
Pooling and Servicing Agreement or the performance of its obligations
thereunder;
4. the Class A Certificates have been duly executed,
authenticated and delivered by the Trustee and assuming delivery and
payment are validly issued therefor and outstanding and are entitled to
the benefits of the Pooling and Servicing Agreement; and
5. the execution and delivery of, and performance by the
Trustee of its obligations under, the Pooling and Servicing Agreement
do not conflict with or result in a violation of any statute or
regulation applicable to the Trustee, or the charter or bylaws of the
Trustee, or to the best knowledge of such counsel, any governmental
authority having jurisdiction over the Trustee or the terms of any
indenture or other agreement or instrument to which the Trustee is a
party or by which it is bound.
In rendering such opinion, such counsel may rely, as to matters
of fact, on certificates of responsible officers of the Company, the Trustee and
public officials. Such opinion may also assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Trustee.
H. The Underwriter shall have received from the Trustee a
certificate, signed by the President, a senior vice president or a vice
president of the Trustee, dated the Closing Date, to the effect that each person
who, as an officer or representative of the Trustee, signed or signs the Class A
Certificates, the Pooling and Servicing Agreement or any other document
delivered pursuant hereto, on the date hereof or on the Closing Date, in
connection with the transactions described in the Pooling and Servicing
Agreement was, at the respective times of such signing and delivery, and is now,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
are their genuine signatures.
I. The Underwriter shall have received from Xxxxx Xxxxxxxxxx,
special counsel to the Underwriter, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Class A Certificates, the
Prospectus and such other related matters as the Underwriter shall reasonably
require.
J. The Underwriter and counsel for the Underwriter shall have
received copies of any opinions of counsel to the Company or the Trustee
supplied to the Trustee relating to matters with respect to the Class A
Certificates, the formation of the
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Trust or the acquisition of the Receivables. Any such opinions shall be
satisfactory to the Underwriter in form and substance.
K. The Underwriter shall have received an opinion from Xxxxx
Xxxxxxxxxx, special tax counsel to the Company to the effect that the statements
in the Prospectus Supplement under the headings "CERTAIN FEDERAL AND STATE
INCOME TAX CONSIDERATIONS" and "ERISA CONSIDERATIONS" accurately describe the
material federal, state and local income tax consequences to the holders of the
Class A Certificates.
L. The Underwriter shall have received such further
information, certificates and documents as the Underwriter may reasonably have
requested not fewer than three (3) full business days prior to the Closing Date.
M. The Underwriter shall have received from special counsel to
the Company, an opinion or survey in form and substance satisfactory to the
Underwriter, indicating the requirements of applicable local law which must be
complied with in order to transfer and service the Receivables pursuant to the
Pooling and Servicing Agreement.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel to the Underwriter, this Agreement
and all obligations of the Underwriter hereunder, may be canceled on, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. Expenses. If the sale of the Class A Certificates provided
for herein is not consummated by reason of a default by the Company in its
obligations hereunder, then the Company will reimburse the Underwriter, upon
demand, for all reasonable out-of-pocket expenses (including, but not limited
to, the reasonable fees and expenses of counsel for the Underwriter) that shall
have been incurred by it in connection with its investigation with regard to the
Company and the Class A Certificates and the proposed purchase and sale of the
Class A Certificates.
8. Indemnification and Contribution.
A. Regardless of whether any Class A Certificates are sold, the
Company will indemnify and hold harmless the Underwriter, each of their
respective officers and directors and each person who controls the Underwriter
within the meaning of the Act or the Securities Exchange Act of 1934 (the "1934
Act"), against any and
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all losses, claims, damages, or liabilities (including the cost of any
investigation, legal and other expenses incurred in connection with and amounts
paid in settlement of any action, suit, proceeding or claim asserted), joint or
several, to which they may become subject, under the Act, the 1934 Act or other
federal or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained (i) in the Registration Statement, or any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, not misleading or (ii) in the Basic Prospectus or the
Prospectus Supplement or any amendment thereto or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by it in connection with investigating or defending against such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information relating to the Underwriter furnished to the
Company by the Underwriter specifically for use in connection with the
preparation thereof.
B. Regardless of whether any Class A Certificates are sold, the
Underwriter will indemnify and hold harmless the Company, each of its officers
and directors and each person, if any, who controls the Company within the
meaning of the Act or the 1934 Act against any losses, claims, damages or
liabilities to which they become subject under the Act, the 1934 Act or other
federal or state law or regulation, at common law or otherwise, to the same
extent as the foregoing indemnity, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in (i)
the Registration Statement, or any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not misleading or in
(ii) the Basic Prospectus or the Prospectus Supplement or any amendment thereto
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, 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
therein in reliance upon and in conformity with written information relating to
the Underwriter furnished to the Company by the Underwriter specifically for use
in
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the preparation thereof and so acknowledged in writing, and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending against such loss, claim, damage,
liability or action.
C. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraphs A, B and E of this Section 8,
such person (hereinafter called the indemnified party) shall promptly notify the
person against whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing thereof; but the omission to notify the
indemnifying party shall not relieve such indemnifying party from any liability
which it may have to any indemnified party otherwise than under such Paragraph.
The indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel, or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Underwriter in the case of parties indemnified pursuant to paragraph A of this
Section 8 and by the Company in the case of parties indemnified pursuant to
paragraphs B and E of this Section 8. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated above, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written
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consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
D. The Underwriter agrees to provide the Company no later than
the date on which the Prospectus Supplement is required to be filed pursuant to
Rule 424 with a copy of any Derived Information (defined below) for filing with
the Commission on Form 8-K.
E. The Underwriter agrees, assuming all Company- Provided
Information (defined below) is accurate and complete in all material respects,
to indemnify and hold harmless the Company, its respective officers and
directors and each person who controls the Company within the meaning of the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they may become subject under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in the Derived
Information provided by such Underwriter, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred. The obligations of the Underwriter under this Section
8(E) shall be in addition to any liability which the Underwriter may otherwise
have.
The procedures set forth in Section 8(C) shall be equally
applicable to this Section 8(E).
F. For purposes of this Section 8, the term "Derived
Information" means such portion, if any, of the information delivered to the
Companies pursuant to Section 8(D) for filing with the Commission on Form 8-K
as: (i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and (ii) does not constitute
Company- Provided Information. "Company-Provided Information" means any computer
tape furnished to the Underwriter by the Company concerning the assets
comprising the Trust.
G. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages or
liabilities referred to herein, then
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each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriter from the sale of the Class A Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only relative benefits referred to
in clause (i) above but also the relative fault of the Company and of the
Underwriter in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriter shall be deemed to be in such proportion so that the Underwriter is
responsible for that portion determined by multiplying the total amount of such
losses, claims, damages and liabilities, including legal and other expenses, by
a fraction, the numerator of which is (x) the excess of the Aggregate Resale
Price (as defined below) of the Class A Certificates over the aggregate purchase
price of the Class A Certificates specified in Section 4 of this Agreement and
the related Prospectus Supplement, and the denominator of which is (y) the
Aggregate Resale Price of the Class A Certificates, and the Company is
responsible for the balance, provided, however, that 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. For purposes of the immediately preceding
sentence, the "Aggregate Resale Price" of the Class A Certificates at the time
of any determination shall be the weighted average of the purchase prices (in
each case expressed as a percentage of the aggregate principal amount of the
Class A Certificates so purchased), determined on the basis of such principal
amounts, paid to the Underwriter by all subsequent purchasers that purchased the
Class A Certificates on or prior to such date of determination. The relative
fault of the Company and the Underwriter shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
H. The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph G of this
Section 8. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph G of this
Section 8 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating
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or defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Underwriter shall not be required to contribute any amount by
which the Aggregate Resale Price exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission.
I. The Company and the Underwriter each expressly waive, and
agree not to assert, any defense to their respective indemnification and
contribution obligations under this Section 8 which they might otherwise assert
based upon any claim that such obligations are unenforceable under federal or
state securities laws or by reasons of public policy.
J. The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Underwriter within the meaning of the Act or the 1934 Act; and the
obligations of the Underwriter under this Section 8 shall be in addition to any
liability that the Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company and to each person,
if any, who controls the Company within the meaning of the Act or the 1934 Act;
provided, however, that in no event shall the Company or the Underwriter be
liable for double indemnification.
9. Information Supplied by Underwriter. The statements set
forth on the front cover page of the Prospectus Supplement regarding
market-making and under the heading "Method of Distribution" in the Prospectus
Supplement (to the extent such statements relate to the Underwriter) constitute
the only information furnished by the Underwriter to the Company for the
purposes of Sections 2(B) and 8(A) hereof. The Underwriter confirms that such
statements (to such extent) are correct.
10. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriter, shall be mailed or delivered or telecopied and
confirmed in writing to Prudential Securities Incorporated, One Seaport Plaza,
New York, New York 10292, Attention: Xxxxxx Xxxxxxx; and, if sent to the
Company, shall be mailed, delivered or telegraphed and confirmed in writing to
Prudential Securities Secured Financing Corporation, One New York Plaza, 12th
Floor, New York, New York 10292, Attention: General Counsel.
11. Survival. All representations, warranties, covenants and
agreements of the Company contained herein or in agreements or certificates
delivered pursuant hereto, the agreements of the Underwriter and the Company
contained in Section 8 hereof, and the agreement of the Underwriter contained in
Section 3 hereof, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the
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Underwriter or any controlling persons, or any subsequent purchaser or the
Company or any of its officers, directors or any controlling persons, and shall
survive delivery of and payment for the Class A Certificates. The provisions of
Sections 5, 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Termination. The Underwriter shall have the right to
terminate this Agreement by giving notice as hereinafter specified at any time
at or prior to the Closing Date if (a) trading generally shall have been
suspended or materially limited on or by, as the case may be, the New York Stock
Exchange or the American Stock Exchange, (b) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (c) a general moratorium on commercial banking activities shall have
been declared by either federal or New York State authorities, (d) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis which, in the Underwriter's
reasonable judgment, is material and adverse, and, in the case of any of the
events specified in clauses (a) through (d), such event singly or together with
any other such event makes it in the Underwriter's reasonable judgment
impractical to market the Class A Certificates. Any such termination shall be
without liability of any other party except that the provisions of Paragraph G
of Section 5 (except with respect to expenses of the Underwriter) and Sections 7
and 8 hereof shall at all times be effective. If the Underwriter elects to
terminate this Agreement as provided in this Section 12, the Company shall be
notified promptly by the Underwriter by telephone, telegram or facsimile
transmission, in any case, confirmed by letter.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the signatories hereto and their respective successors and
assigns (which successors and assigns do not include any person purchasing a
Class A Certificate from the Underwriter), and the officers and directors and
controlling persons referred to in Section 8 hereof and their respective
successors and assigns, and no other persons will have any right or obligations
hereunder.
14. APPLICABLE LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. ANY
ACTION OR PROCEEDING BROUGHT TO ENFORCE OR ARISING OUT OF ANY PROVISION OF THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE
BOROUGH OF MANHATTAN, NEW YORK CITY, NEW YORK, AND THE PARTIES HERETO EXPRESSLY
CONSENT TO THE JURISDICTION OF SUCH COURTS AND AGREE TO WAIVE ANY DEFENSE OR
CLAIM OF FORUM NON CONVENIENS THEY MAY HAVE WITH RESPECT TO ANY SUCH ACTION OR
PROCEEDING BROUGHT.
15. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall together constitute but one and the same
instrument.
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16. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the signatories hereto.
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PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Agreed to and Accepted by:
(as of the date hereof)
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
[Underwriting Agreement Signature Page]
