Exhibit 1.1
ABFS EQUIPMENT CONTRACT TRUST 1999-A
EQUIPMENT CONTRACT-BACKED NOTES
SERIES 1999-A
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
June 24, 1999
Ladies and Gentlemen:
Prudential Securities Secured Financing Corporation (the
"Depositor") proposes, subject to the terms and conditions stated herein and in
the attached Underwriting Agreement Standard Provisions, dated June 24, 1999
(the "Standard Provisions"), between the Depositor, American Business Leasing,
Inc. (the "Originator") and Prudential Securities Incorporated, to issue and
sell to you (the "Underwriter") the Securities specified in Schedule I hereto
(the "Offered Securities"). The Depositor and the Originator agree that each of
the provisions of the Standard Provisions is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Underwriting Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Underwriting Agreement. Each
reference to the "Representative" herein and in the provisions of the Standard
Provisions so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Standard Provisions are used
herein as therein defined. The Prospectus Supplement and the accompanying
Prospectus relating to the Offered Securities (together, the "Prospectus") are
incorporated by reference herein.
Subject to the terms and conditions set forth herein and in
the Standard Provisions incorporated herein by reference, the Depositor agrees
to issue and sell to the Underwriter, and the Underwriter agrees to purchase
from the Depositor, at the time and place and at the purchase price to the
Underwriter and in the manner set forth in Schedule I hereto, the entire
original principal balance of the Offered Securities.
[Remainder of Page Intentionally Left Blank]
If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof, and upon acceptance hereof
by you, this letter and such acceptance hereof, including the provisions of the
Standard Provisions incorporated herein by reference, shall constitute a binding
agreement between the Underwriter, the Originator and the Depositor.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By:
-------------------------------------
Name:
Title:
AMERICAN BUSINESS LEASING, INC.
By:
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By:
-----------------------------------
Name:
Title:
[Signature Page to Underwriting Agreement]
SCHEDULE I
Title of Offered Securities: ABFS Equipment Contract Trust 1999-A,
Equipment Contract Backed Notes, Series
1999-A, Class A-1, Class A-2, Class A-3
and Class A-4.
Terms of Offered Securities: The Offered Securities shall have the
terms set forth in the Prospectus and
shall conform in all material respects
to the descriptions thereof contained
therein, and shall be issued pursuant to
an Indenture, to be dated as of June 1,
1999, between the ABFS Equipment
Contract Trust 1999-A, as issuer,
American Business Leasing, Inc., as
servicer and The Chase Manhattan Bank,
as indenture trustee.
Purchase Price: The purchase price for the Offered
Securities shall be 99.65%, 99.65%,
99.65% and 98.259375% of the aggregate
note principal balance of the Class A-1
Notes, Class A-2 Notes, Class A-3 Notes
and Class A-4 Notes, respectively, as of
the Closing Date, plus accrued interest
at the rate of 6.025% per annum, 6.650%
per annum and 6.650% per annum, on the
aggregate note principal balance of the
Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes, respectively, from, and
including June 15, 1999 to, but not
including the Closing Date.
Specified funds for payment of
Purchase Price: Federal Funds (immediately available
funds).
Required Ratings of the Class A-1, For the Class A-1 Notes, "P-1", and for
Class A-2, Class A-3 and Class A-4 the Class A-2, Class A-3 and Class A-4
Notes: Notes, "Aaa" by Xxxxx'x Investors
Service, Inc.
For the Class A-1 Notes, "A-1+", and for
the Class A-2, Class A-3 and Class A-4
Notes, "AAA" by Standard & Poor's
Ratings Services
Closing Date: On or about June 28, 1999 at 10:00 A.M.
eastern standard time or at such other
time as the Depositor, the Originator
and the Underwriter shall agree.
Closing Location: Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Name and address of Representative: Designated Representative: Prudential
Securities Incorporated.
Address for Notices, etc.: Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
June 24, 1999
From time to time, Prudential Securities Secured Financing
Corporation, a Delaware corporation (the "Depositor") and American Business
Leasing, Inc., a Delaware corporation (the "Originator") may enter into one or
more underwriting agreements (each, an "Underwriting Agreement") that provide
for the sale of designated securities to the several underwriters named therein
(such underwriters constituting the "Underwriters" with respect to such
Underwriting Agreement and the securities specified therein). The several
underwriters named in an Underwriting Agreement will be represented by one or
more representatives as named in such Underwriting Agreement (collectively, the
"Representative"). The term "Representative" also refers to a single firm acting
as sole representative of the Underwriters and to Underwriters who act without
any firm being designated as their representative. The standard provisions set
forth herein (the "Standard Provisions") may be incorporated by reference in any
Underwriting Agreement. These Standard Provisions shall not be construed as an
obligation of the Depositor to sell any securities or as an obligation of any of
the Underwriters to purchase such securities. The obligation of the Depositor to
sell any securities and the obligation of any of the Underwriters to purchase
any of the securities shall be evidenced by the Underwriting Agreement with
respect to the securities specified therein. An Underwriting Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of the communications
transmitted. The obligations of the underwriters under these Standard Provisions
and each Underwriting Agreement shall be several and not joint. Unless otherwise
defined herein, the terms defined in the Underwriting Agreement are used herein
as defined in the Prospectus referred to below.
1. The Offered Securities. The Depositor proposes to sell
pursuant to the applicable Underwriting Agreement to the several Underwriters
named therein equipment contract backed notes (the "Securities") representing
indebtedness secured primarily by the property of a trust which consists of two
pledged notes (the "Pledged Notes") which are secured by a pool of receivables
consisting of direct finance leases and commercial loans (the "Contracts"), the
security interests in the underlying equipment (the "Equipment") and certain
related property. The Securities will be issued pursuant to an Indenture (the
"Indenture") by and between ABFS Equipment Contract Trust 1999-A, as issuer (the
"Issuer"), American Business Leasing, Inc., as servicer (the "Servicer") and The
Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee"). The Issuer
will be formed, at the direction of the Depositor, pursuant to the terms of a
Trust Agreement (the "Trust Agreement"), among the Transferors, the Depositor,
and First Union Trust Company, as owner trustee (the "Owner Trustee"). The
Contracts will be by the Originator to ABFS Residual LLC 1999-A and ABFS Finance
LLC 1999-A (together, the "Transferors") pursuant to the terms of a Receivables
Sale Agreement (the "Receivables Sale Agreement"), among the Originator and the
Transferors. The Transferors will, at the direction of the Depositor, contribute
the Contracts to the Issuer pursuant to the terms of a Receivables Pledge
Agreement (the "Receivables Pledge Agreement"), among the Issuer, the Depositor,
the Indenture Trustee, and the Transferors. The Contracts will be serviced by
the Servicer pursuant to the terms of a Servicing Agreement ("Servicing
Agreement"), by and among the Originator, the Transferors, the Servicer, Chase
Bank of Texas, N.A., as collateral agent (the "Collateral Agent"), the Issuer
and the Indenture Trustee. The Class A Notes will have the benefit of a note
insurance policy (the
"Policy") issued by Financial Security Assurance Inc. (the "Note Insurer")
pursuant to the terms of an Insurance and Indemnity Agreement (the "Insurance
Agreement") among the Note Insurer, the Originator, the Transferors, the Issuer,
ABFS Special Purpose Management, Inc. (the "Manager") and American Business
Credit, Inc. ("ABC"). The Indenture, Trust Agreement, Receivables Sale
Agreement, Receivables Pledge Agreement, Insurance Agreement and Servicing
Agreement are collectively referred to herein as the "Transaction Documents".
The terms and rights of any particular issuance of Securities
shall be as specified in the Underwriting Agreement relating thereto and in or
pursuant to the Indenture identified in such Underwriting Agreement. The
Securities which are the subject of any particular Underwriting Agreement into
which these Standard Provisions are incorporated are herein referred to as the
"Offered Securities."
The Depositor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-52021), including a prospectus relating to the Securities under the
Securities Act of 1933, as amended (the "1933 Act"). The term "Registration
Statement" means such registration statement as amended to the date of the
Underwriting Agreement. The term "Base Prospectus" means the prospectus included
in the Registration Statement. The term "Prospectus Supplement" means the
prospectus supplement specifically relating to the Offered Securities, dated
June 24, 1999. The term "Prospectus" means the Base Prospectus together with the
Prospectus Supplement, as first filed with the Commission pursuant to Rule 424.
The term "Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities together with the Base
Prospectus.
2. Offering by the Underwriters. Upon the execution of the
Underwriting Agreement applicable to any Offered Securities and the
authorization by the Representative of the release of such Offered Securities,
the several Underwriters propose to offer for sale to the public the Offered
Securities at the prices and upon the terms set forth in the Prospectus.
3. Purchase, Sale and Delivery of the Offered Securities.
Unless otherwise specified in the Underwriting Agreement, payment for the
Offered Securities shall be made by certified or official bank check or checks
payable to the order of the Depositor in immediately available or next day
funds, at the time and place set forth in the Underwriting Agreement, upon
delivery to the Representative for the respective accounts of the several
Underwriters of the Offered Securities registered in definitive form and in such
names and in such denominations as the Representative shall request in writing
not less than five full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Offered Securities are
herein referred to as the "Closing Date".
4. Conditions of the Underwriters' Obligations. The respective
obligations of the several Underwriters pursuant to the Underwriting Agreement
shall be subject, in the discretion of the Representative, to the accuracy in
all material respects of the representations and warranties of the Depositor and
the Originator contained herein as of the date of the Underwriting Agreement and
as of the Closing Date as if made on and as of the Closing Date, to the accuracy
in all material respects of the statements of the officers of the Issuer, the
Depositor and the Originator made in any certificates pursuant to the provisions
hereof and of the Underwriting Agreement, to the
2
performance by the Depositor of its covenants and agreements contained herein
and to the following additional conditions precedent:
(a) All actions required to be taken and all filings required to
be made by or on behalf of the Depositor under the 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act") prior to
the sale of the Offered Securities shall have been duly taken or made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect; (ii) no proceedings for
such purpose shall be pending before or threatened by the Commission,
or by any authority administering any state securities or "Blue Sky"
laws; (iii) any requests for additional information on the part of the
Commission shall have been complied with to the Representative's
reasonable satisfaction; (iv) since the respective dates as of which
information is given in the Registration Statement and the Prospectus
except as otherwise stated therein, there shall have been no material
adverse change in the condition, financial or otherwise, earnings,
affairs, regulatory situation or business prospects of the Depositor;
(v) there are no material actions, suits or proceedings pending before
any court or governmental agency, authority or body or threatened,
affecting the Depositor or the transactions contemplated by the
Underwriting Agreement; (vi) the Depositor is not in violation of its
charter or its by-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may
be bound, which violations or defaults separately or in the aggregate
would have a material adverse effect on the Depositor; and (vii) the
Representative shall have received, on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the
Depositor, to the foregoing effect.
(c) Subsequent to the execution of the Underwriting Agreement,
there shall not have occurred any of the following: (i) if at or prior
to the Closing Date, trading in securities on the New York Stock
Exchange shall have been suspended or any material limitation in
trading in securities generally shall have been established on such
exchange, or a banking moratorium shall have been declared by New York
State or federal authorities; (ii) if at or prior to the Closing Date,
there shall have been an outbreak or escalation of hostilities between
the United States and any foreign power, or of any other insurrection
or armed conflict involving the United States which results in the
declaration of a national emergency or war, and, in the reasonable
opinion of the Representative, makes it impracticable or inadvisable
to offer or sell the Offered Securities; or (iii) if at or prior to
the Closing Date, a general moratorium on commercial banking
activities in the State of New York shall have been declared by either
federal or New York State authorities.
(d) The Representative shall have received, on the Closing Date,
a certificate dated the Closing Date and signed by an executive
officer of the Depositor to the effect that attached thereto is a true
and correct copy of the letter from each nationally recognized
statistical rating organization (as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 0000 Xxx) that
rated the Offered Securities and confirming that, unless otherwise
specified in the Underwriting Agreement, the Offered Securities have
been
3
rated in the highest rating categories by each such organization and
that each such rating has not been rescinded since the date of the
applicable letter.
(e) The Representative shall have received, on the Closing Date,
an opinion of Xxxxx Xxxxxxxxxx LLP, special counsel for the Depositor,
dated the Closing Date, in form and substance satisfactory to the
Representative and containing opinions substantially to the effect set
forth in Exhibit A hereto.
(f) The Representative shall have received, on the Closing Date,
an opinion of counsel for the Servicer, the Transferors and the
Originator, dated the Closing Date, in form and substance satisfactory
to the Representative and counsel for the Underwriters and containing
opinions substantially to the effect set forth in Exhibit B hereto.
(g) The Representative shall have received, on the Closing Date,
an opinion of counsel for the Indenture Trustee, dated the Closing
Date, in form and substance satisfactory to the Representative and
counsel for the Underwriters and containing opinions substantially to
the effect set forth in Exhibit C hereto.
(h) The Representative shall have received, on the Closing Date,
an opinion of counsel for the Issuer and First Union Trust Company,
National Association, as owner trustee (the "Owner Trustee"), dated
the Closing Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters and containing
opinions substantially to the effect set forth in Exhibit D hereto.
(i) The Representative shall have received, on the Closing Date,
an opinion of Xxxxx Xxxxxxxxxx LLP, special counsel for the Depositor,
dated the Closing Date, with respect to the incorporation of the
Depositor, the validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Depositor shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(j) The Representative shall have received, on or prior to the
date of first use of the prospectus supplement relating to the Offered
Securities, and on the Closing Date if requested by the
Representative, letters of independent accountants of the Depositor in
the form and reflecting the performance of the procedures previously
requested by the Representative.
(k) The Depositor shall have furnished or caused to be furnished
to the Representative on the Closing Date a certificate of an
executive officer of the Depositor satisfactory to the Representative
as to the accuracy of the representations and warranties of the
Depositor herein at and as of such Closing Date as if made as of such
date, as to the performance by the Depositor of all of its obligations
hereunder to be performed at or prior to such Closing Date, and as to
such other matters as the Representative may reasonably request;
(l) The Servicer shall have furnished or caused to be furnished
to the Representative on the Closing Date a certificate of officers of
such Servicer in form and substance reasonably satisfactory to the
Representative;
4
(m) The Note Insurance Policy shall have been duly executed and
issued at or prior to the Closing Date and shall conform in all
material respects to the description thereof in the Prospectus
Supplement.
(n) The Representative shall have received, on the Closing Date,
an opinion of counsel to Financial Security Assurance Inc. (the "Note
Insurer"), dated the Closing Date, in form and substance satisfactory
to the Representative and counsel for the Underwriters and containing
opinions as to such matters as the Representative may reasonably
request.
(o) On or prior to the Closing Date there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible
change in rating the direction of which has not been indicated, in the
rating accorded the Note Insurer's claims paying ability by any
"nationally recognized statistical rating organization," as such term
is defined for purposes of the 1933 Act.
(p) There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since March 31,
1999, of the Note Insurer, that is in the Representative's judgment
material and adverse and that makes it in the Representative's
judgment impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
(q) The Representative shall have been furnished such further
information, certificates, documents and opinions as the
Representative may reasonably request.
5. Covenants of the Depositor. In further consideration of the
agreements of the Underwriters contained in the Underwriting Agreement, the
Depositor covenants as follows:
(a) To furnish the Representative, without charge, copies of the
Registration Statement and any amendments thereto including exhibits
and as many copies of the Prospectus and any supplements and
amendments thereto as the Representative may from time to time
reasonably request.
(b) Immediately following the execution of the Underwriting
Agreement, the Depositor will prepare a prospectus supplement setting
forth the principal amount, notional amount or stated amount, as
applicable, of Offered Securities covered thereby, the price at which
the Offered Securities are to be purchased by the Underwriters from
the Depositor, either the initial public offering price or prices or
the method by which the price or prices at which the Offered
Securities are to be sold will be determined, the selling concessions
and reallowances, if any, any delayed delivery arrangements, and such
other information as the Representative and the Depositor deem
appropriate in connection with the offering of the Offered Securities,
but the Depositor will not file any amendment to the Registration
Statement or any supplement to the Prospectus of which the
Representative shall not previously have been advised and furnished
with a copy a reasonable time prior to the proposed filing or to which
the Representative shall have reasonably objected. The Depositor will
use its best efforts to cause any amendment to the Registration
Statement to
5
become effective as promptly as possible. During the time when a
Prospectus is required to be delivered under the 1933 Act, the
Depositor will comply so far as it is able with all requirements
imposed upon it by the 1933 Act and the rules and regulations
thereunder to the extent necessary to permit the continuance of sales
or of dealings in the Offered Securities in accordance with the
provisions hereof and of the Prospectus, and the Depositor will
prepare and file with the Commission, promptly upon request by the
Representative, any amendments to the Registration Statement or
supplements to the Prospectus which may be necessary or advisable in
connection with the distribution of the Offered Securities by the
Underwriters, and will use its best efforts to cause the same to
become effective as promptly as possible. The Depositor will advise
the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement or any amended
Registration Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed. The Depositor
will advise the Representative, promptly after it receives notice or
obtains knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of any preliminary
Prospectus or the Prospectus, or the suspension of the qualification
of the Offered Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceeding for any such
purpose, or of any request made by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information, and the Depositor will use its best efforts to
prevent the issuance of any such stop order or any order suspending
any such qualification, and if any such order is issued, to obtain the
lifting thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact, or
omit to state any 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, or if it is
necessary for any other reason to amend or supplement the Prospectus
to comply with the 1933 Act, to promptly notify the Representative
thereof and upon their request to prepare and file with the
Commission, at the Depositor's own expense, an amendment or supplement
which will correct such statement or omission or any amendment which
will effect such compliance.
(d) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Offered Securities
pursuant to the Underwriting Agreement, the Depositor will file, on a
timely and complete basis, all documents that are required to be filed
by the Depositor with the Commission pursuant to Sections 13, 14, or
15(d) of the 1934 Act.
(e) To qualify the Offered Securities for offer and sale under
the securities or "Blue Sky" laws of such jurisdictions as the
Representative shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) in connection with such
qualification of the eligibility of the Offered Securities for
investment under the laws of such jurisdictions as the Representative
may designate provided that in connection
6
therewith the Depositor shall not be required to qualify to do
business or to file a general consent to service of process in any
jurisdiction.
(f) To make generally available to the Depositor's security
holders, as soon as practicable, but in any event not later than
eighteen months after the date on which the filing of the Prospectus,
as amended or supplemented, pursuant to Rule 424 under the 1933 Act
first occurs, an earnings statement of the Depositor covering a
twelve-month period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section 11(a) of the
1933 Act and the applicable rules and regulations of the Commission
thereunder (including, at the option of the Depositor, Rule 158).
(g) For so long as any of the Offered Securities remain
outstanding, to furnish to the Representative upon request in writing
copies of such financial statements and other periodic and special
reports as the Depositor may from time to time distribute generally to
its creditors or the holders of the Offered Securities and to furnish
to the Representative copies of each annual or other report the
Depositor shall be required to file with the Commission.
(h) For so long as any of the Offered Securities remain
outstanding, the Depositor will, or will cause the Servicer to,
furnish to the Representative, as soon as available, a copy of (i) the
annual statement of compliance delivered by the Servicer to the
Indenture Trustee under the Servicing Agreement, (ii) the annual
independent public accountants' servicing report furnished to the
Indenture Trustee pursuant to the Servicing Agreement, (iii) each
report regarding the Offered Securities mailed to the holders of such
Securities, and (iv) from time to time, such other information
concerning such Securities as the Representative may reasonably
request.
6. Representations and Warranties of the Depositor and the
Originator.
(a) The Depositor represents and warrants to, and agrees with,
each Underwriter and the Originator, as of the date of the
Underwriting Agreement, as follows:
(i) The Registration Statement including a prospectus relating to
the Securities and the offering thereof from time to time in
accordance with Rule 415 under the 1933 Act has been filed with the
Commission and such Registration Statement, as amended to the date of
the Underwriting Agreement, has become effective. No stop order
suspending the effectiveness of such Registration Statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission. A prospectus supplement specifically
relating to the Offered Securities will be filed with the Commission
pursuant to Rule 424 under the 1933 Act; provided, however, that a
supplement to the Prospectus prepared pursuant to -------- -------
Section 5(b) hereof shall be deemed to have supplemented the base
Prospectus only with respect to the Offered Securities to which it
relates. The conditions to the use of a registration statement on Form
S-3 under the 1933 Act, as set forth in the General Instructions on
Form S-3, and the conditions of Rule 415 under the 1933 Act, have been
satisfied with respect to the Depositor and the Registration
Statement. There are no contracts or documents of the Depositor that
are required to be filed as exhibits to the Registration Statement
pursuant to the 1933 Act or the rules and regulations thereunder that
have not been so filed.
7
(ii) On the effective date of the Registration Statement, the
Registration Statement and the base Prospectus conformed in all
material respects to the requirements of the 1933 Act and the rules
and regulations thereunder, and did not include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; on the date of the Underwriting Agreement and as of the
Closing Date, the Registration Statement and the Prospectus conform,
and as amended or supplemented, if applicable, will conform in all
material respects to the requirements of the 1933 Act and the rules
and regulations thereunder, and on the date of the Underwriting
Agreement and as of the Closing Date, neither of such documents
includes any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and neither of such documents as
amended or supplemented, if applicable, will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does not
apply to statements or omissions in any of such documents based upon
written information furnished to the Depositor by any Underwriter
specifically for use therein.
(iii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no material adverse change in the
condition, financial or otherwise, earnings, affairs, regulatory
situation or business prospects of the Depositor, whether or not
arising in the ordinary course of the business of the Depositor.
(iv) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(v) The Depositor has all requisite power and authority
(corporate and other) and all requisite authorizations, approvals,
orders, licenses, certificates and permits of and from all government
or regulatory officials and bodies to own its properties, to conduct
its business as described in the Registration Statement and the
Prospectus and to execute, deliver and perform these Standard
Provisions, the Underwriting Agreement and the Transaction Documents
to which it is a party, except such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution by the Underwriter of the Offered Securities; all such
authorizations, approvals, orders, licenses, certificates are in full
force and effect and contain no unduly burdensome provisions; and,
except as set forth or contemplated in the Registration Statement or
the Prospectus, there are no legal or governmental proceedings pending
or, to the best knowledge of the Depositor, threatened that would
result in a material modification, suspension or revocation thereof.
(vi) The Offered Securities have been duly authorized, and when
the Offered Securities are issued and delivered pursuant to the
Underwriting Agreement, the Offered Securities will have been duly
executed, issued and delivered and will be entitled to the benefits
provided by the Indenture, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting the rights of creditors generally, and to general
principles of equity (regardless of whether the entitlement to such
benefits is considered in a proceeding in equity or at law), and will
8
conform in substance to the description thereof contained in the
Registration Statement and the Prospectus, and will in all material
respects be in the form contemplated by the Indenture.
(vii) The execution and delivery by the Depositor of these
Standard Provisions, the Underwriting Agreement and the Transaction to
which it is a party are within the corporate power of the Depositor
and none of the execution and delivery by the Depositor of these
Standard Provisions, the Underwriting Agreement and the Transaction
Document to which it is a party, the consummation by the Depositor of
the transactions therein contemplated, or the compliance by the
Depositor with the provisions thereof, will conflict with or result in
a breach of, or constitute a default under, the charter or the by-laws
of the Depositor or any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Depositor
or its properties, or any of the provisions of any indenture,
mortgage, contract or other instrument to which the Depositor is a
party or by which it is bound, or will result in the creation or
imposition of a lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or
other instrument, except such as have been obtained under the 1933 Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters.
(viii) The Underwriting Agreement has been, and at the Closing
Date Transaction Documents to which it is a party will have been, duly
authorized, executed and delivered by the Depositor.
(ix) At the Closing Date, each of the Underwriting Agreement and
the Transaction Documents to which it is a party will constitute a
legal, valid and binding obligation of the Depositor, enforceable
against the Depositor, in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of
creditors generally, and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(x) No filing or registration with, notice to, or consent,
approval, non-disapproval, authorization or order or other action of,
any court or governmental authority or agency is required for the
consummation by the Depositor of the transactions contemplated by the
Underwriting Agreement and the Transaction Documents, except such as
have been obtained and except such as may be required under the 1933
Act, the rules and regulations thereunder, or state securities or
"Blue Sky" laws, in connection with the purchase and distribution of
the Offered Securities by the Underwriters.
(xi) The Depositor owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease, own or license, as the case may be,
and to operate, its properties and to carry on its business as
presently conducted and has received no notice of proceedings relating
to the revocation of any such license, permit, consent, order or
approval, which singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect
9
the conduct of the business, results of operations, net worth or
condition (financial or otherwise) of the Depositor.
(xii) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Depositor is a party or of which any property of the Depositor is the
subject which, if determined adversely to the Depositor would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, or business or
business prospects of the Depositor and, to the best of the
Depositor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xiii) At the Closing Date or any Subsequent Transfer Date, as
the case may be, each of the Contracts which is a subject of the
Transaction Documents and all such Contracts in the aggregate will
meet the criteria for selection described in the Prospectus, and at
the Closing Date or any Subsequent Transfer Date, as the case may be,
the representations and warranties made by the Depositor in the
Transaction Documents will be true and correct as of such date.
(xiv) At the time of execution and delivery of the Transaction
Documents and on any Subsequent Transfer Date, as the case may be, the
Transferors will have good and marketable title to the Contracts being
transferred to the Issuer at the direction of the Depositor pursuant
to the Receivables Pledge Agreement, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"), and they will not have assigned to
any person (other than the Issuer and the Indenture Trustee) any of
their respective right, title or interest in such Contracts and each
will have the power and authority to transfer such Contracts to the
Issuer, and upon execution and delivery to the Issuer of the
Receivables Pledge Agreement, and on any Subsequent Transfer Date, as
the case may be, the Issuer will have good and marketable title to the
Contracts free and clear of any Liens.
(xv) At the time of execution and delivery of the Transaction
Documents, the Depositor will have good and marketable title to the
Offered Securities free and clear of any Liens and will not have
assigned to any person any of its right, title or interest in the
Offered Securities being issued pursuant thereto, the Depositor will
have the power and authority to transfer the Offered Securities to
each of the Underwriters, and upon delivery to each of the
Underwriters of the Offered Securities, each of the Underwriters will
have good and marketable title to the Offered Securities, free and
clear of any Liens.
(xvi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Underwriting Agreement, these Standard Provisions, the Transaction
Documents and the Offered Securities have been or will be paid at or
prior to the Closing Date.
(b) The Originator represents and warrants to, and agrees with,
each Underwriter and the Depositor, as of the date of the Underwriting
Agreement, as follows:
10
(i) The Originator has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania.
(ii) The Originator has all requisite power and authority
(corporate and other) and all requisite authorizations, approvals,
orders, licenses, certificates and permits of and from all government
or regulatory officials and bodies to own its properties, to conduct
its business as described in the Prospectus and to execute, deliver
and perform these Standard Provisions, the Underwriting Agreement, and
the Transaction Documents to which it is a party, except such as may
be required under state securities or Blue Sky laws in connection with
the purchase and distribution by the Underwriter of the Offered
Securities; all such authorizations, approvals, orders, licenses,
certificates are in full force and effect and contain no unduly
burdensome provisions; and, except as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the best knowledge of the Originator, threatened that would result
in a material modification, suspension or revocation thereof.
(iii) The Offered Securities have been duly authorized, and when
the Offered Securities are issued and delivered pursuant to the
Underwriting Agreement, the Offered Securities will have been duly
executed, issued and delivered and will be entitled to the benefits
provided by the applicable Indenture, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally,
and to general principles of equity (regardless of whether the
entitlement to such benefits is considered in a proceeding in equity
or at law), and will conform in substance to the description thereof
contained in the Registration Statement and the Prospectus, and will
in all material respects be in the form contemplated by the Indenture.
(iv) The execution and delivery by the Originator of these
Standard Provisions, the Underwriting Agreement and the Transaction
Documents to which it is a party are within the corporate power of the
Originator and none of the execution and delivery by the Depositor of
these Standard Provisions, the Underwriting Agreement, and the
Transaction Documents to which it is a party, the consummation by the
Originator of the transactions therein contemplated, or the compliance
by the Originator with the provisions thereof, will conflict with or
result in a breach of, or constitute a default under, the charter or
the by-laws of the Originator or any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
the Originator or its properties, or any of the provisions of any
indenture, mortgage, contract or other instrument to which the
Originator is a party or by which it is bound, or will result in the
creation or imposition of a lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, except such as have been obtained under
the 1933 Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters.
(v) The Underwriting Agreement has been, and at the Closing Date
the Transaction Documents to which it is a party will have been, duly
authorized, executed and delivered by the Originator.
11
(vi) At the Closing Date, each of the Underwriting Agreement and
the Transaction Documents to which it is a party will constitute a
legal, valid and binding obligation of the Originator, enforceable
against the Originator, in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of
creditors generally, and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(vii) No filing or registration with, notice to, or consent,
approval, non-disapproval, authorization or order or other action of,
any court or governmental authority or agency is required for the
consummation by the Originator of the transactions contemplated by the
Underwriting Agreement and the Transaction Documents, except such as
have been obtained and except such as may be required under the 1933
Act, the rules and regulations thereunder, or state securities or
"Blue Sky" laws, in connection with the purchase and distribution of
the Offered Securities by the Underwriters.
(viii) The Originator owns or possesses or has obtained all
material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease, own or license, as the
case may be, and to operate, its properties and to carry on its
business as presently conducted and has received no notice of
proceedings relating to the revocation of any such license, permit,
consent, order or approval, which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business, results of
operations, net worth or condition (financial or otherwise) of the
Originator.
(ix) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Originator is a party or of which any property of the Originator is
the subject which, if determined adversely to the Originator would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, or business or
business prospects of the Originator and, to the best of the
Originator's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(x) At the Closing Date or any Subsequent Transfer Date, as the
case may be, each of the Contracts which is a subject of the
Transaction Documents, and all such Contracts in the aggregate will
meet the criteria for selection described in the Prospectus, and at
the Closing Date or any Subsequent Transfer Date, as the case may be,
the representations and warranties made by the Originator in the
Transaction Documents will be true and correct as of such date.
(xi) At the time of execution and delivery of the Transaction
Documents to which it is a party, the Originator will have good and
marketable title to the Contracts being transferred to the Transferors
and then from the Transferors to the Issuer pursuant to the
Transaction Documents, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"), and will not have assigned to any person
(other than the Issuer and the Indenture Trustee) any of its right,
title or interest in such Contracts or in such Transaction Documents,
the Originator will have the power and
12
authority to transfer such Contracts to the Transferors, and upon
execution and delivery of the Transaction Documents and delivery of
the Contracts to, or on behalf of, the Issuer, and on any Subsequent
Transfer Date, as the case may be, the Issuer will have good and
marketable title to the Contracts free and clear of any Liens.
(xii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Underwriting Agreement and the Transaction Documents and the Offered
Securities have been or will be paid at or prior to the Closing Date.
7. Indemnification and Contribution.
(a) The Depositor and the Underwriters.
(i) The Depositor agrees to indemnify and hold harmless each
Underwriter (including Prudential Securities Incorporated acting in
its capacity as Representative and as one of the Underwriters), and
each person, if any, who controls any Underwriter within the meaning
of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person
may become subject under the 1933 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 or alleged untrue
statement of any material fact contained in the Registration
Statement, any preliminary Prospectus, the Prospectus, 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, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Depositor will 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 any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any preliminary Prospectus, the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with (1) written information furnished to the Depositor by any
Underwriter through the Representative specifically for use therein or
(2) information regarding the Contracts except to the extent that the
Depositor has been indemnified by the Servicer. This indemnity
agreement will be in addition to any liability which the Depositor may
otherwise have.
(ii) Each Underwriter will indemnify and hold harmless the
Depositor, each of the Depositor's directors, each of the Depositor's
officers who signed the Registration Statement and each person, if
any, who controls the Depositor, within the meaning of the 1933 Act,
against any losses, claims, damages or liabilities to which the
Depositor, or any such director, officer or controlling person may
become subject, under the 1933 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 or alleged untrue
statement of any material fact contained in the Registration
Statement, any preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any other prospectus relating to
the
13
Offered Securities, 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 statements or alleged untrue statements or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Depositor by any Underwriter
through the Representative specifically for use therein; and each
Underwriter will reimburse any legal or other expenses reasonably
incurred by the Depositor or any such director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise
have. The Depositor acknowledges that the statements set forth under
the caption "UNDERWRITING" in the Prospectus Supplement constitute the
only information furnished to the Depositor by or on behalf of any
Underwriter for use in the Registration Statement, any preliminary
Prospectus or the Prospectus, and each of the several Underwriters
represents and warrants that such statements are correct as to it.
(iii) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding parts of this Section 7 is for any reason held to be
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof);
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In determining the amount
of contribution to which the respective parties are entitled, there
shall be considered the relative benefits received by the Depositor on
the one hand, and the Underwriters on the other, from the offering of
the Offered Securities (taking into account the portion of the
proceeds of the offering realized by each), the Depositor's and the
Underwriters' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any
other equitable considerations appropriate in the circumstances. The
Depositor and the Underwriters agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity
for such purpose). No Underwriter or person controlling such
Underwriter shall be obligated to make contribution hereunder which in
the aggregate exceeds the total underwriting fee of the Offered
Securities purchased by such Underwriter under the Underwriting
Agreement, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been required
to pay in respect of the same or any substantially similar claim. The
Underwriters' obligation to contribute hereunder are several in
proportion to their respective underwriting obligations and not joint.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each
director of the Depositor, each officer of the Depositor who signed
the Registration Statement, and each person, if any, who controls the
Depositor within the meaning of Section 15 of the 1933 Act, shall have
the same rights to contribution as the Depositor.
14
(b) The Originator and the Depositor.
(i) The Originator agrees (A) to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who have signed
the Registration Statement, and each of its directors and each person
or entity who controls the Depositor or any such person, within the
meaning of Section 15 of the Securities Act, against any and all
losses, claims, damages or liabilities, joint and several, to which
the Depositor or any such person or entity may become subject, under
the Securities Act or otherwise, and will reimburse the Depositor and
each such controlling person for any legal or other expenses incurred
by the Depositor or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement or any amendment or supplement to the
Prospectus Supplement or the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements in the Prospectus Supplement or any amendment or
supplement to the Prospectus Supplement approved in writing by the
Originator, in light of the circumstances under which they were made,
not misleading, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission relates to
the information contained in the Prospectus Supplement other than the
information under the caption "UNDERWRITING"; this indemnity agreement
will be in addition to any liability which the Originator may
otherwise have; and (B) to indemnify and to hold the Depositor
harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the Depositor may sustain in any way
related to the failure of any of the Originator or its affiliates to
perform its duties in compliance with the terms of the Transaction
Documents; the Originator shall immediately notify the Depositor if a
claim is made by a third party with respect to the Transaction
Documents, and the Originator shall assume the defense of any such
claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against the Depositor in
respect of such claim.
(ii) The Depositor agrees to indemnify and hold harmless the
Originator, its directors and each person or entity who controls the
Originator or any such person, within the meaning of Section 15 of the
Securities Act, against any and all losses, claims, damages or
liabilities, joint and several, to which the Originator or any such
person or entity may become subject, under the Securities Act or
otherwise, and will reimburse the Originator and any such director or
controlling person for any legal or other expenses incurred by such
party or any such director or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, the Prospectus
Supplement, any amendment or supplement to the Prospectus or the
Prospectus Supplement or the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, but only to the extent that such
untrue statement or alleged untrue statement or
15
omission or alleged omission is other than a statement or omission
relating to the information set forth in subsection (c)(i) of this
Section 7; provided, however, that in no event shall -------- -------
the Depositor be liable to the Originator under this paragraph (ii) in
an amount in excess of the Depositor's resale profit or the
underwriting fee on the sale of the Notes; this indemnity agreement
will be in addition to any liability which the Depositor may otherwise
have.
(iii) Promptly after receipt by an indemnified party under this
Section 7(b) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7(b), notify the
indemnifying party in writing of the commencement thereof, but the
omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability which the indemnifying party may
have to any indemnified party hereunder except to the extent such
indemnifying party has been prejudiced thereby. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to
such indemnified party. After notice from the indemnifying party to
such indemnified party of its election to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section 7(b) for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it that are different from or additional to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. The indemnifying party
shall not be liable for the expenses of more than one separate
counsel.
(iv) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding parts of this Section 4.04 is for any reason held to be
unavailable to or insufficient to hold harmless an indemnified party
under subsection (i) or subsection (ii) of this Section 7(b) in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) subject to the limits set forth in subsection (i) and
subsection (ii) of this Section 7(b); provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which
the respective parties are entitled, there shall be considered the
relative benefits received by the Originator on the one hand, and the
Depositor on the other, the Originator's and the Depositor's relative
knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable
considerations
16
appropriate in the circumstances. The Originator and the Depositor
agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. For
purposes of this Section 7(b), each director of the Depositor, each
officer of the Depositor who signed the Registration Statement, and
each person, if any who controls the Depositor within the meaning of
Section 15 of the Securities Act, shall have the same rights to
contribution as the Depositor, and each director of the Originator,
and each person, if any who controls the Originator within the meaning
of Section 15 of the Securities Act, shall have the same rights to
contribution as the Originator.
(c) The parties hereto agree that the first sentence of Section 5
of the Indemnification Agreement (the "Indemnification Agreement")
dated as of the Closing Date among the Note Insurer, the Issuer, the
Depositor and the Underwriter shall not be construed as limiting the
Depositor's right to enforce its rights under Section 7 of these
Standard Provisions. The parties further agree that, as between the
parties hereto, to the extent that the provisions of Section 5 of the
Indemnification Agreement conflict with Section 7 hereof, the
provisions of Section 7 hereof shall govern.
8. Survival of Certain Representations and Obligations. The
respective representations, warranties, agreements, covenants, indemnities and
other statements of the Depositor and the Originator, its officers and the
several Underwriters set forth in, or made pursuant to, the Underwriting
Agreement shall remain in full force and effect, regardless of any
investigation, or statement as to the result thereof, made by or on behalf of
any Underwriter, the Depositor and the Originator, or any of the officers or
directors or any controlling person of any of the foregoing, and shall survive
the delivery of and payment for the Offered Securities.
9. Termination. (a) The Underwriting Agreement may be terminated
by the Depositor by notice to the Representative and the Originator in
the event that a stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings for that
purpose shall have been instituted or threatened.
(b) The Underwriting Agreement may be terminated by the
Representative by notice to the Depositor and the Originator in the
event that the Depositor shall have failed, refused or been unable to
perform all obligations and satisfy all conditions to be performed or
satisfied hereunder by the Depositor at or prior to the Closing Date.
(c) Termination of the Underwriting Agreement pursuant to this
Section 9 shall be without liability of any party to any other party
other than as provided in Sections 7 and 11 hereof.
10. Default of Underwriters. If any Underwriter or Underwriters
defaults or default in their obligation to purchase Offered Securities which it
or they have agreed to purchase under the Underwriting Agreement and the
aggregate principal amount of the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent (10%)
or less of the aggregate principal amount, notional amount or stated amount, as
applicable, of the Offered Securities to be sold under the Underwriting
Agreement, as the case may be, the other Underwriters shall be obligated
severally in proportion to their respective commitments under the Underwriting
Agreement to purchase the Offered Securities which such defaulting Underwriter
17
or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so defaults or default and the aggregate principal amount of the
Offered Securities with respect to which such default or defaults occurs or
occur is more than ten percent (10%) of the aggregate principal amount, notional
amount or stated amount, as applicable, of Offered Securities to be sold under
the Underwriting agreement, as the case may be, and arrangements satisfactory to
the Representative and the Depositor for the purchase of such Offered Securities
by other persons (who may include one or more of the non-defaulting Underwriters
including the Representative) are not made within 36 hours after any such
default, the Underwriting Agreement will terminate without liability on the part
of any non-defaulting Underwriters or the Depositor except for the expenses to
be paid or reimbursed by the Depositor pursuant to Section 11 hereof. As used in
the Underwriting Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10. Nothing herein shall
relieve a defaulting Underwriter from liability for its default.
11. Expenses. (a) The Depositor agrees with the several
Underwriters that:
(i) whether or not the transactions contemplated in the
Underwriting Agreement are consummated or the Underwriting Agreement
is terminated, the Depositor will pay all fees and expenses incident
to the performance of its obligations under the Underwriting
Agreement, including, but not limited to, (i) the Commission's
registration fee, (ii) the expenses of printing and distributing the
Underwriting Agreement and any related underwriting documents, the
Registration Statement, any preliminary Prospectus, the Prospectus,
any amendments or supplements to the Registration Statement or the
Prospectus, and any Blue Sky memorandum or legal investment survey and
any supplements thereto, (iii) fees and expenses of rating agencies,
accountants and counsel for the Depositor, (iv) the expenses referred
to in Section 5(e) hereof, and (v) all miscellaneous expenses referred
to in Item 30 of the Registration Statement;
(ii) all out-of-pocket expenses, including counsel fees,
disbursements and expenses, reasonably incurred by the Underwriters in
connection with investigating, preparing to market and marketing the
Offered Securities and proposing to purchase and purchasing the
Offered Securities under the Underwriting Agreement will be borne and
paid by the Depositor if the Underwriting Agreement is terminated by
the Depositor pursuant to Section 9(a) hereof or by the Representative
on account of the failure, refusal or inability on the part of the
Depositor to perform all obligations and satisfy all conditions on the
part of the Depositor to be performed or satisfied hereunder; and
(iii) the Depositor will pay the cost of preparing the
certificates for the Offered Securities.
(b) In connection with the transactions contemplated under this
Underwriting Agreement and the Transaction Documents, the Originator
shall promptly pay (or shall promptly reimburse the Depositor to the
extent that the Depositor shall have paid or otherwise incurred): (i)
the fees and disbursements of the Depositor's and the Originators'
counsel; (ii) the fees of S&P and Xxxxx'x; (iii) any of the fees of
the Indenture Trustee and the fees and disbursements of the Indenture
Trustee's counsel; (iv) any of the fees of the Owner Trustee and the
fees and disbursements of the Owner Trustee's counsel; (v) expenses
incurred in connection with printing the Prospectus, the Prospectus
Supplement, any
18
amendment or supplement thereto, any preliminary prospectus and the
Notes; (vi) fees and expenses relating to the filing of documents with
the Commission (including without limitation periodic reports under
the Exchange Act); (vii) the shelf registration amortization fee of
0.04% of the Note Principal Balance of the Notes on the Closing Date,
paid in connection with the issuance of Notes; (viii) the fees and
disbursements for Deloitte & Touche LLP, accountants for the
Originator; and (ix) all of the initial expenses (not to exceed
$75,000) of the Note Insurer including, without limitation, legal fees
and expenses, accountant fees and expenses and expenses in connection
with due diligence conducted on the Contract Files but not including
the initial premium paid to the Note Insurer. For the avoidance of
doubt, the parties hereto acknowledge that it is the intention of the
parties that the Depositor shall not pay any of the Indenture
Trustee's or Owner Trustee's fees and expenses in connection with the
transactions contemplated by this Underwriting Agreement and the
Transaction Documents. All other costs and expenses in connection with
the transactions contemplated hereunder shall be borne by the party
incurring such expenses.
(c) Except as otherwise provided in this Section 11, the
Underwriters agree to pay all of their expenses in connection with
investigating, preparing to market and marketing the Offered
Securities and proposing to purchase and purchasing the Offered
Securities under the Underwriting Agreement, including the fees and
expenses of their counsel and any advertising expenses incurred by
them in making offers and sales of the Offered Securities.
12. Notices. All communications under the Underwriting Agreement
shall be in writing and, (i) if sent to the Underwriters, shall be mailed,
delivered or telegraphed and confirmed to the Representative at the address and
to the attention of the person specified in the Underwriting Agreement, (ii) if
sent to the Depositor, shall be mailed, delivered or telegraphed and confirmed
to Prudential Securities Secured Financing Corporation, Xxx Xxx Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Managing Director-Asset Backed Finance Group
and (iii) if sent to the Originator, shall be mailed, delivered or telegraphed
and confirmed to American Business Leasing, Inc., Xxxxxxxxxx Xxxxxx Xxxxxx, 000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000; provided,
however, that any notice to any Underwriter pursuant to the Underwriting
Agreement shall be mailed, delivered or telegraphed and confirmed to such
Underwriter at the address furnished by it.
13. Representative of Underwriters. Any Representative identified
in the Underwriting Agreement will act for the Underwriters of the Offered
Securities and any action taken by the Representative under the Underwriting
Agreement will be binding upon all of such Underwriters.
14. Successors. The Underwriting Agreement shall inure to the
benefit of and shall be binding upon the several Underwriters, the Depositor and
the Originator and their respective successors and legal representatives, and
nothing expressed or mentioned herein or in the Underwriting Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of the Underwriting Agreement, or any
provisions herein contained, the Underwriting Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the representations and warranties of the Depositor and the
19
Originator contained herein or in the Underwriting Agreement shall also be for
the benefit of any person or persons who controls or control any Underwriter
within the meaning of Section 15 of the 1933 Act, and (ii) the indemnities by
the several Underwriters shall also be for the benefit of the directors of the
Depositor, the officers of the Depositor who have signed the Registration
Statement and any person or persons who control the Depositor within the meaning
of Section 15 of the 1933 Act. No purchaser of the Offered Securities from any
Underwriter shall be deemed a successor because of such purchase. These Standard
Provisions and each Underwriting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. Time of the Essence. Time shall be of the essence of each
Underwriting Agreement.
16. Governing Law. These Standard Provisions and each
Underwriting Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
[Signature Page Follows]
20
If the foregoing is in accordance with your understanding,
please sign and return two counterparts hereof.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By:
----------------------------------------
Name:
Title:
AMERICAN BUSINESS LEASING, INC.
By:
----------------------------------------
Name:
Title:
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By:
---------------------------------
Name:
Title:
[Signature Page to Underwriting Agreement Standard Provisions]
Exhibit A
Opinions of Xxxxx Xxxxxxxxxx LLP,
special counsel for the Depositor
(1) Each of the Trust Agreement, the Receivables Pledge
Agreement, the Underwriting Agreement and the Standard Provisions (collectively,
with the Indemnification Agreement, the "Documents") constitutes the valid,
legal and binding agreement of the Depositor, and is enforceable against the
Depositor in accordance with its terms.
(2) The Notes, assuming the due execution by the Issuer and
due authentication by the Indenture Trustee and payment therefor pursuant to the
Underwriting Agreement, are validly issued and outstanding and are entitled to
the benefits of the Indenture.
(3) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or court
is required under federal laws or the laws of the State of New York for the
execution, delivery and performance of the Documents or the offer, issuance,
sale or delivery of the Notes or the consummation of any other transaction
contemplated thereby by the Depositor, except such which have been obtained.
(4) The Registration Statement and the Prospectus (other than
the financial and statistical data included therein, as to which we are not
called upon to express any opinion), at the time the Registration Statement
became effective, as of the date of execution of the Underwriting Agreement and
as of the date hereof comply as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations thereunder, and the
Exchange Act and the rules and regulations thereunder, and we do not know of any
amendment to the Registration Statement required to be filed, or of any
contracts, indentures or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus, which has not been filed or described
as required.
(5) The registration of the Trust Estate created by the
Indenture under the Investment Company Act of 1940 is not required.
(6) The statements in the Prospectus Supplement set forth
under the caption "DESCRIPTION OF THE NOTES," to the extent such statements
purport to summarize certain provisions of the Notes or of the Transaction
Documents, are fair and accurate in all material respects.
Exhibit B
Opinions of Counsel to
the Originator
(1) The Originator has been duly organized and is validly
existing as a corporation in good standing under the federal laws of the United
States and is duly qualified to transact business in the Commonwealth of
Pennsylvania.
(2) The Originator has the requisite power and authority to
execute and deliver, engage in the transactions contemplated by, and perform and
observe the conditions of, each of the Transaction Documents to which it is a
party.
(3) Each of the Transaction Documents to which the Originator
is a party have been duly and validly authorized, executed and delivered by the
Originator, all requisite corporate action having been taken with respect
thereto, and each constitutes the valid, legal and binding agreement of the
Originator, and are enforceable against the Originator in accordance with their
respective terms.
(4) Neither the transfer of the Contracts to the Transferors,
nor the execution, delivery or performance by the Originator of the each of the
Documents to which it is a party (A) conflicts or will conflict with or results
or will result in a breach of, or constitutes or will constitute a default under
or violates or will violate, (i) any term or provision of the charter or by-laws
of the Originator; (ii) any term or provision of any material agreement,
contract, instrument or indenture, to which the Servicer or any of its
subsidiaries 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 Originator or any of its properties; or
(B) results in, or will result in the creation or imposition of any lien, charge
or encumbrance upon the Pledged Property or upon the Notes, except as otherwise
contemplated by the Indenture.
(5) No consent, approval, authorization or order of,
registration or qualification of or with or notice to, any court, governmental
agency or body or other tribunal is required under the laws of the State of New
York or the Commonwealth of Pennsylvania, for the execution, delivery and
performance of each of the Transaction Documents to which it is a party or the
consummation of any other transaction contemplated thereby by the Originator,
except such which have been obtained.
(6) There are no legal or governmental suits, proceedings or
investigations pending or, to such counsel's knowledge, threatened against the
Originator before any court, governmental agency or body or other tribunal (A)
which, if determined adversely to the Servicer, would individually or in the
aggregate have a material adverse effect on (i) the consolidated financial
position, business prospects, stockholders' equity or results of operations of
the Originator; (ii) the Originator 's ability to perform its obligations under,
or the validity or enforceability of, each of the Transaction Documents to which
it is a party; (iii) any Contract or Equipment, or the title of any Obligor to
any Equipment; or (B) which have not otherwise been disclosed in the Prospectus
and to the best of such counsel's knowledge, no such proceedings or
investigations are threatened or contemplated by governmental authorities or
threatened by others.
Exhibit C
Opinions of Counsel to
the Indenture Trustee
(1) The Indenture Trustee is a New York banking corporation
duly organized, validly existing and in good standing under the laws of the New
York and has the power and authority to enter into and to take all actions
required of it under the Indenture.
(2) Each of the Documents to which the Indenture Trustee is a
party have been duly authorized, executed and delivered by the Indenture Trustee
and each such Document constitutes the legal, valid and binding obligation of
the Indenture Trustee, enforceable against the Indenture 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 Indenture Trustee, and (B) general principles of equity regardless
of whether such enforcement is sought in a proceeding at law or in equity.
(3) No consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part of the
Indenture Trustee in connection with its execution and delivery of each of the
Documents to which it is a party or the performance of its obligations
thereunder.
(4) The Notes have been duly authenticated and delivered by
the Indenture Trustee.
(5) The execution and delivery of, and performance by the
Indenture Trustee of its obligations under, each of the Documents to which it is
a party do not conflict with or result in a violation of any statute or
regulation applicable to the Indenture Trustee, or the charter or bylaws of the
Indenture Trustee, or to the best knowledge of such counsel, any governmental
authority having jurisdiction over the Indenture Trustee or the terms of any
indenture or other agreement or instrument to which the Indenture Trustee is a
party or by which it is bound.
Exhibit D
Opinions of Counsel to
the Issuer
(1) The Issuer is a Delaware business trust duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the power and authority to enter into and to take all actions required
of it under the each of the Documents to which it is a party.
(2) Each of the Documents to which the Issuer is a party have
been duly authorized, executed and delivered by the Issuer and each such
Document constitutes the legal, valid and binding obligation of the Issuer,
enforceable against the Issuer 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 Issuer, and (B)
general principles of equity regardless of whether such enforcement is sought in
a proceeding at law or in equity.
(3) No consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part of the
Issuer in connection with its execution and delivery of the Documents to which
it is a party or the performance of its obligations thereunder.
(4) The Notes have been duly executed and delivered by the
Issuer.
(5) The execution and delivery of, and performance by the
Issuer of its obligations under each of the Documents to which it is a party do
not conflict with or result in a violation of any statute or regulation
applicable to the Issuer, or the certificate of trust of the Issuer, or to the
best knowledge of such counsel, any governmental authority having jurisdiction
over the Issuer or the terms of any indenture or other agreement or instrument
to which the Issuer is a party or by which it is bound.
