EXHIBIT 1.1
ABFS MORTGAGE LOAN TRUST 1997-1
MORTGAGE LOAN PASS-THROUGH CERTIFICATES
SERIES 1997-1
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
March 14, 1997
Dear Sirs:
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 March 14, 1997
(the "Standard Provisions"), between the Depositor and Prudential Securities
Incorporated, to issue and sell to you (the "Underwriter") the Securities
specified in Schedule I hereto (the "Offered Securities"). The Depositor agrees
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 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.
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 and the Depositor.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Director
[Signature Page to Underwriting Agreement]
SCHEDULE I
Title of Offered
Securities: ABFS Mortgage Loan Trust 1997-1, Mortgage Loan Pass-
Through Certificates, Series 1997-1, Class A-1, Class A-2 and
Class A-3.
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 a Pooling and Servicing Agreement to be dated as of
March 1, 1997 among the Depositor, American Business Credit,
Inc., as servicer, and The Chase Manhattan Bank, as trustee.
Purchase Price: The purchase price for the Offered Securities shall be
99.484375%, 99.468750% and 99.453125% of the aggregate
principal balance of the Class A-1, Class A-2 and Class A-3
Certificates, respectively, as of the Closing Date, plus accrued
interest at the rate of 6.525%, 6.925% and 7.525% per annum,
respectively, from March 1, 1997 to, but not including, March
27, 1997.
Specified funds for
payment of Purchase Price: Federal Funds (immediately available funds).
Required Ratings: Aaa by Xxxxx'x Investors Service, Inc.
AAA by Standard & Poor's Ratings Services
Closing Date: On or about March 27, 1997 at 10:00 A.M. eastern standard time
or at such other time as the Depositor and the Underwriter shall
agree.
Closing Location: Offices of American Business Credit, Inc., Balapointe Office
Centre, 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxxxxxx 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: Xxx Xxxx
STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
March 14, 1997
From time to time, Prudential Securities Secured Financing
Corporation, a Delaware corporation (the "Depositor") 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. This Agreement 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 this Agreement 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 home equity loan certificates (the "Securities") representing
beneficial ownership interests in a trust, the trust property of which consists
of a pool of home equity loans (the "Mortgage Loans") and certain related
property. The Securities will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") by and among the Depositor,
American Business Credit, Inc., as Servicer (the "Servicer") and The Chase
Manhattan Bank, as trustee (the "Trustee").
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 Pooling and Servicing Agreement identified in such Underwriting
Agreement. The Securities which are the subject of any particular Underwriting
Agreement into which this Agreement is 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.
333-16511), 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" means the Base Prospectus
together with the prospectus supplement specifically relating to the Offered
Securities, 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
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 Depositor and the
Servicer made in any certificates pursuant to the provisions hereof and of the
Underwriting Agreement, to the 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
2
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 or United States 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 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 1933 Act) that rated the Offered
Securities and confirming that, unless otherwise specified in
the Underwriting Agreement, the Offered Securities have been
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, 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, 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 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 Xxxxx Xxxxxxxxxx, counsel for the
Underwriters, dated the Closing Date, with respect to the
incorporation of the Depositor, the validity of the Offered
3
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.
(i) 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.
(j) 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;
(k) 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;
(l) The Certificate 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.
(m) The Representative shall have received, on the Closing
Date, an opinion of counsel to Financial Security Assurance
Inc. (the "Certificate Insurer"), 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.
(n) 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 Certificate
Insurer's claims paying ability by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of the 1933 Act.
(o) 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
December 31, of the Certificate 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.
(p) The Representative shall have received, on the Closing
Date, a certificate dated the Closing Date and signed by the
President, a senior vice president or a
4
vice president of the Certificate Insurer to the effect that
the signer of such certificate has carefully examined the
Certificate Insurance Policy, the Insurance Agreement dated
the Closing Date (the "Insurance Agreement") among the
Servicer, the Underwriter, the Depositor and the Certificate
Insurer and the related documents and that, to the best of his
or her knowledge based on reasonable investigation:
(i) there are no actions, suits or proceedings pending or
threatened against or affecting the Certificate
Insurer which, if adversely determined, individually
or in the aggregate, would adversely affect the
Certificate Insurer's performance under the
Certificate Insurance Policy or the Insurance
Agreement;
(ii) each person who, as an officer or representative of
the Certificate Insurer, signed or signs the
Certificate Insurance Policy, the Insurance Agreement
or any other document delivered pursuant hereto, on
the date thereof, or on the Closing Date, in
connection with the transactions described in 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;
(iii) the information contained in the Prospectus under the
captions "THE CERTIFICATE INSURANCE POLICY" and "THE
CERTIFICATE INSURER" is true and correct in all
material respects and does not omit to state a
material fact with respect to the description of the
Certificate Insurance Policy or the ability of the
Certificate Insurer to meet its payment obligations
under the Certificate Insurance Policy;
(iv) the tables regarding the Certificate Insurer's
capitalization set forth under the heading "THE
CERTIFICATE INSURANCE POLICY" and THE CERTIFICATE
INSURER" present fairly the capitalization of the
Certificate Insurer as of December 31, 1996;
(v) on or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (i) any
intended or potential downgrading or (ii) any review
or possible changes in rating the direction of which
has not been indicated, in the rating accorded the
claims paying ability of the Certificate Insurer by
any "nationally recognized statistical rating
organization," as such term is defined for purposes
of the 1933 Act;
(vi) the audited balance sheet of the Certificate Insurer
as of December 31, 1996 and the related statement of
income and retained earnings for the fiscal year then
ended, and the accompanying footnotes, together with
an opinion thereon dated January 24, 1997 of Coopers
& Xxxxxxx, independent certificated public
accountants, copies of which are incorporated by
reference in the Prospectus, fairly present in all
material respects the financial condition of the
Certificate Insurer as of such date
5
and for the period covered by such statements in
accordance with generally accepted accounting
principles consistently applied.
(vii) to the best knowledge of such officer, since December
31, 1996 no material adverse change has occurred in
the financial position of the Certificate Insurer
other than as set forth in the Prospectus.
The officer of the Certificate Insurer certifying to items
(v)-(vii) shall be an officer in charge of a principal
financial function. The Certificate Insurer shall attach to
such certificate a true and correct copy of its certificate or
articles of incorporation, as appropriate, and its bylaws, all
of which are in full force and effect on the date of such
certificate.
(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 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
6
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 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
7
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 Trustee under the applicable Pooling and
Servicing Agreement, (ii) the annual independent public
accountants' servicing report furnished to the Trustee
pursuant to the applicable Pooling and 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. The
Depositor represents and warrants to, and agrees with, each Underwriter, as of
the date of the Underwriting Agreement, as follows:
(a) 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
Basic 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.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Basic 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
8
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.
(c) 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.
(d) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware.
(e) 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 this Agreement, the Underwriting
Agreement, the Pooling and Servicing Agreement and, if
applicable, the Custodial Agreement, 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.
(f) 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 Pooling and
Servicing Agreement, 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
(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
9
Statement and the Prospectus, and will in all material
respects be in the form contemplated by the Pooling and
Servicing Agreement.
(g) The execution and delivery by the Depositor of this
Agreement, the Underwriting Agreement and the Pooling and
Servicing Agreement are within the corporate power of the
Depositor and neither the execution and delivery by the
Depositor of this Agreement, the Underwriting Agreement and
the Pooling and Servicing Agreement nor the consummation by
the Depositor of the transactions therein contemplated, nor
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.
(h) The Underwriting Agreement has been, and at the Closing
Date the Pooling and Servicing Agreement will have been, duly
authorized, executed and delivered by the Depositor.
(i) At the Closing Date, each of the Underwriting Agreement
and the Pooling and Servicing Agreement 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).
(j) 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 or the
Pooling and Servicing Agreement, 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.
(k) 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
10
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 Depositor.
(l) 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.
(m) Each of the Offered Securities will, when issued, be a
"mortgage related security" as such term is defined in Section
3(a)(41) of the 1934 Act.
(n) At the Closing Date or any Subsequent Transfer Date, as
the case may be, each of the Mortgage Loans which is a subject
of the Pooling and Servicing Agreement and all such Mortgage
Loans 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 such
Pooling and Servicing Agreement will be true and correct as of
such date.
(o) At the time of execution and delivery of the Pooling and
Servicing Agreement and on any Subsequent Transfer Date, as
the case may be, the Depositor will have good and marketable
title to the Mortgage Loans being transferred to the Trustee
pursuant to the Pooling and Servicing Agreement, 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 any of its
right, title or interest in such Mortgage Loans or in such
Pooling and Servicing Agreement or the Offered Securities
being issued pursuant thereto, the Depositor will have the
power and authority to transfer such Mortgage Loans to the
Trustee and to transfer the Offered Securities to each of the
Underwriters, and upon execution and delivery to the Trustee
of the Pooling and Servicing Agreement and delivery to each of
the Underwriters of the Offered Securities, and on any
Subsequent Transfer Date, as the case may be, the Trustee will
have good and marketable title to the Mortgage Loans and each
of the Underwriters will have good and marketable title to the
Offered Securities, in each case free and clear of any Liens.
(p) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended,
and the Trust Fund (as defined in the Pooling and Servicing
Agreement) is not required to be registered under the
Investment Company Act of 1940, as amended.
(q) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Underwriting Agreement, this Agreement,
11
the Pooling and Servicing Agreement and the Offered Securities
have been or will be paid at or prior to the Closing Date.
7. Indemnification and Contribution.
(a) 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
Mortgage Loans 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.
(b) 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 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
12
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 "PLAN OF DISTRIBUTION"
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.
(c) Promptly after receipt by an indemnified party under this
Section 7 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,
notify the indemnifying party 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
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof with counsel
satisfactory to such indemnified party. After notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7
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,
that the Representative shall have the right to employ
separate counsel to represent the Representative, those other
Underwriters and their respective controlling persons who may
be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the
Depositor under this Section 7 if, in the reasonable judgment
of the Representative, it is advisable for the Representative
and those Underwriters and controlling persons to be
represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the
Depositor (it being understood, however, that the Depositor
shall not, in connection with any one such claim or separate
but substantially similar or related claim in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for
the Representative and those Underwriters and controlling
persons).
(d) 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
13
liabilities (or actions in respect thereof); provided,
however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 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 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.
(e) 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 Certificate Insurer, the Servicer, the Depositor and
the Underwriter shall not be construed as limiting the
Depositor's right to enforce its rights under Section 7 of
this Agreement. 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, 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, 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.
14
9. Termination.
(a) The Underwriting Agreement may be terminated by the
Depositor by notice to the Representative 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 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 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 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 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. The Depositor agrees with the several
Underwriters that:
(a) 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
15
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;
(b) 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
(c) the Depositor will pay the cost of preparing the
certificates for the Offered Securities.
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, 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, and, if
sent to the Depositor, shall be mailed, delivered or telegraphed and confirmed
to Prudential Securities Secured Financing Corporation, One New York Plaza, New
York, New York 10292, Attention: Managing Director-Asset Finance Group;
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 and the Depositor
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 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
16
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. This Agreement 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. This Agreement and each Underwriting
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
[Signature Page Follows]
17
If the foregoing is in accordance with your understanding,
please sign and return two counterparts hereof.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Director
[Signature Page to Underwriting Agreement Standard Provisions]
Exhibit A
Opinions of Xxxxx Xxxxxxxxxx,
special counsel for the Depositor
(1) Each of 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 Certificates, assuming the due execution by the Trustee and due
authentication by the Trustee and payment therefor pursuant to the Underwriting
Agreement, are validly issued and outstanding and are entitled to the benefits
of the Pooling and Servicing Agreement.
(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
Certificates 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) Neither the qualification of the Pooling and Servicing Agreement
under the Trust Indenture Act of 1939, as amended, nor the registration of the
Trust Fund created by the Pooling and Servicing Agreement under the Investment
Company Act of 1940 is required.
(6) The statements in the Prospectus Supplement set forth under the
caption "DESCRIPTION OF THE CERTIFICATES," to the extent such statements purport
to summarize certain provisions of the Certificates or of the Pooling and
Servicing Agreement or of the Unaffiliated Seller's Agreement, are fair and
accurate in all material respects.
Exhibit B
Opinions of Counsel to
the Servicer
(1) The Servicer 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 State of Pennsylvania.
(2) The Servicer has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and observe the
conditions of, the Pooling and Servicing Agreement and the Unaffiliated Seller's
Agreement dated as of the Closing Date (the "Unaffiliated Seller's Agreement")
between the Servicer, Upland, the Seller and the Depositor, together referred to
hereinafter as the "Servicer Agreements".
(3) The Servicer Agreements have been duly and validly authorized,
executed and delivered by the Servicer, all requisite corporate action having
been taken with respect thereto, and each constitutes the valid, legal and
binding agreement of the Servicer, and are enforceable against the Servicer in
accordance with their respective terms.
(4) Neither the transfer of the Mortgage Loans to the Depositor, nor
the execution, delivery or performance by the Servicer of the Servicer
Agreements (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 Articles of Incorporation or By-laws
of the Servicer; (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 Servicer 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 Trust
Fund or upon the Certificates, except as otherwise contemplated by the Pooling
and Servicing Agreement.
(5) The endorsement and delivery of each Mortgage Note, and the
preparation, delivery and recording of an Assignment of Mortgage with respect to
each Mortgage is sufficient fully to transfer to the Depositor and its assignees
all right, title and interest of the Servicer in the Mortgage Note and Mortgage,
as noteholder and mortgagee or assignee thereof.
(6) No consent, approval, authorization or order of, registration or
qualification of or with or notice to, any courts, governmental agency or body
or other tribunal is required under the laws of New York or Pennsylvania, for
the execution, delivery and performance of the Servicer Agreements or the
consummation of any other transaction contemplated thereby by the Servicer,
except such which have been obtained.
(7) There are no legal or governmental suits, proceedings or
investigations pending or, to such counsel's knowledge, threatened against the
Servicer 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's equity or
results of operations of the Servicer; (ii) the Servicer's ability to perform
its obligations under, or the validity or enforceability of, the Servicer
Agreements; (iii) any Mortgage Note or Mortgaged Property, or the title of any
Mortgagor to any Mortgaged Property; or (B) which have not otherwise been
disclosed in the Registration Statement 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.
B-2
Exhibit C
Opinions of Counsel to
the Trustee
(1) The 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 Pooling and Servicing Agreement.
(2) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and the Pooling and Servicing Agreement
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.
(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 Certificates have been duly executed, authenticated and
delivered by the Trustee.
(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.
C-1
Exhibit D
Opinions of Counsel
to the Certificate Insurer
(1) The Certificate Insurer is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of New York. The
Certificate Insurer is validly licensed and authorized to issue the Certificate
Insurance Policy and perform its obligations under the Certificate Insurance
Policy in accordance with the terms thereof, under the laws of the State of New
York.
(2) The execution and delivery by the Certificate Insurer of the
Certificate Insurance Policy, and the Indemnification Agreement are within the
corporate power of the Certificate Insurer and have been authorized by all
necessary corporate action on the part of the Certificate Insurer; the
Certificate Insurance Policy has been duly executed and is the valid and binding
obligation of the Certificate Insurer enforceable in accordance with its terms
except that the enforcement of the Certificate Insurance Policy may be limited
by laws relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights generally and by
general principles of equity.
(3) The Certificate Insurer is authorized to deliver the
Indemnification Agreement, and the Indemnification Agreement has been duly
executed and is the valid and binding obligation of the Certificate Insurer
enforceable in accordance with its terms except that the enforcement thereof may
be limited by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting creditors' rights
generally and by general principles of equity and by public policy
considerations relating to indemnification for securities law violations.
(4) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required on the part of the
Certificate Insurer, the lack of which would adversely affect the validity or
enforceability of the Certificate Insurance Policy; to the extent required by
applicable legal requirements that would adversely affect validity or
enforceability of the Certificate Insurance Policy, the form of each Certificate
Insurance Policy has been filed with, and approved by, all governmental
authorities having jurisdiction over the Certificate Insurer in connection with
such Certificate Insurance Policy.
(5) To the extent the Certificate Insurance Policy constitutes a
security within the meaning of Section 2(1) of the 1933 Act, it is a security
that is exempt from the registration requirements of the Act.
(6) The information set forth under the captions "THE CERTIFICATE
INSURANCE POLICY" and "THE CERTIFICATE INSURER" in the Prospectus insofar as
such statements constitute a description of the Certificate Insurance Policy,
accurately summarizes the Certificate Insurance Policy.
D-1
