MORTGAGE LENDERS NETWORK HOME EQUITY LOAN TRUST 1998-2
ASSET BACKED NOTES
SERIES 1998-2
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
Prudential Securities Incorporated,
as Representative of the several Underwriters
One New York Plaza
New York, New York 10292
June 4, 1998
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 June 4, 1998 (the "Standard
Provisions"), between the Depositor, Prudential Securities Incorporated
("Prudential") and First Union Capital Markets, a division of Wheat First
Securities Corp. ("First Union") to issue and sell to you (Prudential and First
Union, collectively, the "Underwriters") the Securities specified in Schedule I
hereto (the "Offered Securities") in the amounts set forth in Schedule I hereto.
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 Prudential. 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 cause the
Issuer to issue and sell to the Underwriters, and each Underwriter agrees to
purchase from the Depositor, at the time and place and at the purchase price to
each Underwriter and in the manner set forth in Schedule I hereto, the original
principal balance of the Offered Securities in the amounts set forth in Schedule
I hereto with respect to each Underwriter.
[Remainder of Page Intentionally Left Blank]
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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/ Xxxx Xxxxx Xxxx
---------------------------
Name: Xxxx Xxxxx Xxxx
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED,
as Representative of the several Underwriters
By:___________________________
Name:
Title:
[Signature Page to Underwriting Agreement]
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SCHEDULE I
Issuer: Mortgage Lenders Network Home Equity Loan Trust
1998-2
Title of Offered Securities: Mortgage Lenders Network Home Equity Loan Trust
1998-2, Asset Backed Notes, Series 1998-2.
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, 1998 among
the Issuer and Norwest Bank Minnesota, National
Association, as trustee.
Purchase Commitment: Prudential Securities Incorporated: $107,327,500
First Union Capital Markets (a division of Wheat
First Securities Corp.): $45,997,500.
Purchase Price: The purchase price for the Offered Securities
shall be 100.00% of the aggregate principal
balance of the Notes, as of the Closing Date, plus
accrued interest at the rate of 6.605% per annum
on the aggregate principal balance of the Class
A-1 Notes and 6.585% per annum, on the aggregate
principal balance of the Class A-2 Notes, from
June 1, 1998 to, but not including, June 17, 1998.
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 June 17, 1998 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 Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Representative: Designated Representative: Prudential Securities
Incorporated.
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Address for Notices, etc.: Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxx
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STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
June 4, 1998
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.
SECTION 1. The Offered Securities. The Depositor proposes to cause the
Issuer to sell, pursuant to the Underwriting Agreement to the several
Underwriters named therein, asset backed notes (the "Securities") representing
obligations of the Issuer, which obligations are secured by a pledge of mortgage
loans (the "Mortgage Loans") and certain related property. The Securities will
be issued pursuant to an indenture (the "Indenture") dated as of June 1, 1998 by
and between the Issuer and Norwest Bank Minnesota, National Association., as
indenture trustee (the "Trustee"). The underlying loans were originated by
Mortgage Lenders Network USA, Inc. (the "Seller") and are to be serviced
pursuant to a Servicing Agreement dated as of June 1, 1998 by and among the
Issuer, Mortgage Lenders Network USA, Inc., as servicer (the "Servicer") and 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 Indenture 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. 333-27355),
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
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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.
SECTION 2. Offering by the Underwriters. Upon the execution of the
Underwriting Agreement 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.
SECTION 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". SECTION 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
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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 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 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 Mortgage Lenders Network USA, Inc., 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 LLP, counsel for the Underwriters, 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.
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(i) The Representative shall have received, on the Closing Date, such
other opinions of Counsel in form and substance satisfactory to the
Representative and counsel to the Underwriters as the Representative shall
request.
(j) The Representative shall have received, on or prior to the date of
first use of each of the preliminary prospectus supplement and 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;
(m) The Note Guaranty Insurance Policy (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 MBIA Insurance Corporation (the "Note 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.
(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 December 31, 1997 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 received, on the Closing Date, a
certificate dated the Closing Date and signed by the President, a senior vice
president or a vice president of the Note Insurer to the effect that the signer
of such certificate has carefully examined the Note Insurance Policy, the
Insurance Agreement dated the Closing Date (the "Insurance Agreement") among the
Note Insurer, the Issuer, the Servicer, the Depositor and the Trustee and the
related documents and that, to the best of his or her knowledge based on
reasonable investigation:
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(i) there are no actions, suits or proceedings pending or threatened
against or affecting the Note Insurer which, if adversely determined,
individually or in the aggregate, would adversely affect the Note
Insurer's performance under the Note Insurance Policy or the Insurance
Agreement;
(ii) each person who, as an officer or representative of the Note Insurer,
signed or signs the Note 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 caption "THE
NOTE INSURANCE" is true and correct in all material respects and does not
omit to state a material fact with respect to the description of the Note
Insurance Policy or the ability of the Note Insurer to meet its payment
obligations under the Note Insurance Policy;
(iv) the tables regarding the Note Insurer's capitalization set forth
under the heading "THE NOTE INSURANCE The Note Insurer" present fairly the
capitalization of the Note Insurer as of [December 31, 1997];
(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 Note 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 Note Insurer as of December 31, 1997
and the related statement of income and retained earnings for the fiscal
year then ended, and the accompanying footnotes, together with an opinion
thereon of Coopers & Xxxxxxx L.L.P., independent certified public
accountants, copies of which are incorporated by reference in the
Prospectus, fairly present in all material respects the financial
condition of the Note Insurer as of such date 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, 1997 no
material adverse change has occurred in the financial position of the Note
Insurer other than as set forth in the Prospectus.
The officer of the Note Insurer certifying to items (v)-(vii) shall be an
officer in charge of a principal financial function. The Note 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.
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(r) The Representative shall have been furnished such further information,
certificates, documents and opinions as the Representative may reasonably
request.
SECTION 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 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.
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(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 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 Servicing Agreement, (ii) the annual
independent public accountants' servicing report furnished to the 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.
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SECTION 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 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.
(b) 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, any Computational Materials nor any ABS Term Sheets 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.
"Computational Materials" shall mean those materials delivered within the
meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation
X. Xxxxxx, Xxxxxxx & Co., Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association for
which the filing of such material is a condition of the relief granted in such
letters. "ABS Term Sheet" shall mean those materials delivered in the form of
"Structural Term Sheets" or "Collateral Term Sheets", in each case within the
meaning of the no-action letter dated February 13, 1995 issued by the Division
of Corporation Finance of the Commission to the Public Securities Association
for which the filing of such material is a condition of the relief granted in
such letter.
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(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 Deposit Trust Agreement and the
Mortgage Loan Contribution 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 Indenture, 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 Statement and
the Prospectus, and will in all material respects be in the form contemplated by
the Indenture.
(g) The execution and delivery by the Depositor of this Agreement, the
Underwriting Agreement, the Deposit Trust Agreement and the Mortgage Loan
Contribution Agreement are within the corporate power of the Depositor and
neither the execution and delivery by the Depositor of this Agreement, the
Underwriting Agreement, the Deposit Trust Agreement and the Mortgage Loan
Contribution 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.
13
(h) The Underwriting Agreement has been, and at the Closing Date the
Deposit Trust Agreement and the Mortgage Loan Contribution Agreement will have
been, duly authorized, executed and delivered by the Depositor.
(i) At the Closing Date, each of this Agreement, the Underwriting
Agreement, the Deposit Trust Agreement and the Mortgage Loan Contribution
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 this Agreement, the Underwriting
Agreement, the Deposit Trust Agreement and the Mortgage Loan Contribution
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 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, the representations and warranties made by the
Depositor in such Mortgage Loan Contribution Agreement will be true and correct
as of such date.
(o) At the time of execution and delivery of the Mortgage Loan
Contribution Agreement, the Depositor will have good and marketable title to the
Mortgage Loans being transferred to the Trustee pursuant to the Mortgage Loan
Contribution Agreement, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest claiming through the
Depositor (collectively, "Liens"), and will not have assigned to any person any
of its
14
right, title or interest in such Mortgage Loans or in such Mortgage Loan
Contribution Agreement, the Depositor will have the power and authority to
transfer such Mortgage Loans to the Issuer and to cause the Issuer to transfer
the Offered Securities to each of the Underwriters, and upon execution and
delivery to the Issuer of the Mortgage Loan Contribution Agreement and delivery
to each of the Underwriters of the Offered Securities, the Issuer 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 claiming through the Depositor.
(p) The Indenture has been duty qualified under the Trust Indenture Act of
1939, as amended, and the Issuer 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 this Agreement, the Underwriting Agreement,
the Deposit Trust Agreement, the Mortgage Loan Contribution Agreement, and the
Offered Securities have been or will be paid at or prior to the Closing Date.
SECTION 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, any Computational Materials, any ABS Term Sheets, 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 Seller. 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
15
Statement, any Preliminary Prospectus, the Prospectus, any Computational
Materials, any ABS Term Sheets 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 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.
(c) 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 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.
16
(d) The parties hereto agree that the first sentence of Section 6 of the
Indemnification Agreement (the "Indemnification Agreement") dated as of the
Closing Date among the Note Insurer, Mortgage Lenders Network USA, Inc.,
Prudential Securities Incorporated and First Union Capital Markets, division of
Wheat First Securities Corp. 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 6 of the Indemnification Agreement conflict with Section 7
hereof, the provisions of Section 7 hereof shall govern.
SECTION 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.
SECTION 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.
SECTION 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
17
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.
SECTION 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 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.
SECTION 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.
SECTION 13. Representative of Underwriters. Any Representative identified
in the Underwriting Agreement will act for the Underwriters of the Offered
Securities and any
18
action taken by the Representative under the Underwriting Agreement will be
binding upon all of such Underwriters.
SECTION 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 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.
SECTION 15. Time of the Essence. Time shall be of the essence of each
Underwriting Agreement.
SECTION 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]
19
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/ Xxxx Xxxxx Xxxx
---------------------------
Name: Xxxx Xxxxx Xxxx
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED,
as Representative of the several Underwriters
By:__________________________________
Name:
Title:
[Signature Page to Underwriting Agreement Standard Provisions]
20
Exhibit A
Opinions of Xxxxx Xxxxxxxxxx LLP,
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 Notes, 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 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 Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended and the Issuer is not required to be registered under the
Investment Company Act of 1940.
(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 Indenture, are fair and
accurate in all material respects.
A-1
Exhibit B
Opinions of Counsel to
Mortgage Lender Network USA, Inc.
(1) Mortgage Lender Network USA, Inc. has been duly organized and is
validly existing as a corporation in good standing under the State of Delaware
and is duly qualified to transact business in all states in which the conduct of
its business requires such qualification.
(2) The Company has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and observe the
conditions of, the Basic Documents to which it is a party (collectively referred
to herein as the MLN Agreements).
(3) The MLN Agreements have been duly and validly authorized, executed and
delivered by the Company, all requisite corporate action having been taken with
respect thereto, and each constitutes the valid, legal and binding agreement of
the Company, and are enforceable against the Company 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 Company of the MLN Agreements
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
Company; (ii) any term or provision of any material agreement, contract,
instrument or indenture, to which the Company 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 Company or any of its properties.
(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 Company 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 Delaware, for the
execution, delivery and performance of the Company Agreements or the
consummation of any other transaction contemplated thereby by the Company,
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
Company before any court, governmental agency or body or other tribunal (A)
which, if determined adversely to the Company, 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 Company; (ii) the Company's ability to perform its obligations under, or the
validity or enforceability of, the MLN 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-1
Exhibit C
Opinions of Counsel to
the Trustee
(1) The Trustee is a banking association duly organized, validly existing
and in good standing under the laws of the United States and has the power and
authority to enter into and to take all actions required of it under the
Indenture.
(2) The Indenture has been duly authorized, executed and delivered by the
Trustee and the Indenture 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 Indenture or the
performance of its obligations thereunder.
(4) The Notes 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 Indenture 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 Note Insurer
(1) The Note Insurer is a stock insurance corporation, duly incorporated
and validly existing under the laws of the State of New York. The Note Insurer
is validly licensed and authorized to issue the Note Insurance Policy and
perform its obligations under the Note Insurance Policy in accordance with the
terms thereof, under the laws of the State of New York.
(2) The execution and delivery by the Note Insurer of the Note Insurance
Policy, and the Indemnification Agreement are within the corporate power of the
Note Insurer and have been authorized by all necessary corporate action on the
part of the Note Insurer; the Note Insurance Policy has been duly executed and
is the valid and binding obligation of the Note Insurer enforceable in
accordance with its terms except that the enforcement of the Note 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 Note 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 Note 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 Note
Insurer, the lack of which would adversely affect the validity or enforceability
of the Note Insurance Policy; to the extent required by applicable legal
requirements that would adversely affect validity or enforceability of the Note
Insurance Policy, the form of each Note Insurance Policy has been filed with,
and approved by, all governmental authorities having jurisdiction over the Note
Insurer in connection with such Note Insurance Policy.
(5) To the extent the Note 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 NOTE INSURANCE - The
Insurance Policy" and "THE NOTE INSURANCE - The Note Insurer" in the Prospectus
insofar as such statements constitute a description of the Note Insurance
Policy, accurately summarizes the Note Insurance Policy.
D-1
