Exhibit 4.6
Receipts on Corporate Securities Trust, Series CHR 1998-1
$57,830,000 Residual Class Certificates
$48,096,190 Amortizing Class Certificates
Prudential Securities Structured Assets, Inc.
Depositor
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and
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entered into as of June 9, 1998 by and between Prudential Securities Structured
Assets, Inc., a Delaware corporation (the "Company"), and Prudential Securities
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Incorporated (the "Initial Purchaser"), which has agreed pursuant to the
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Purchase Agreement described below to purchase from the Company an aggregate of
$57,830,000 in certificate principal amount of Receipts on Corporate Securities,
Series CHR 1998-1, Residual Class Certificates and an aggregate of $48,096,190
in certificate principal amount of Receipts on Corporate Securities, Series CHR
1998-1, Amortizing Class Certificates (together, the "Initial Certificates").
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The Initial Certificates evidence a class of undivided interest in Receipts on
Corporate Securities Trust, Series CHR 1998-1 (the "Trust") to be formed
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pursuant to the Trust Agreement dated as of August 28, 1997, between the
Company, as depositor, and The Bank of New York, as trustee (together with any
successor trustee, the "Trustee"), as amended by Base Amendment No. 1 thereto
dated as of February 27, 1998 and as supplemented by the Series CHR 1998-1
Supplement, to be dated as of June 9, 1998 (together, and as amended from time
to time, the "Trust Agreement"). The property of the Trust will consist
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principally of $57,830,000 aggregate principal amount of 7.40% Debentures due
2097 (the "Term Assets") issued by Chrysler Corporation ("CHR") and transferred
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by the Company to the Trust in exchange for the Initial Certificates and certain
other interests in the Trust.
This Agreement is made pursuant to the Terms Agreement, dated June 9,
1998 between the Company and the Initial Purchaser, which Terms Agreement
incorporates by reference the document entitled "Prudential Securities
Structured Assets, Inc.--Receipts of Corporate Securities--Offered From Time to
Time in Series, Purchase Agreement--Basic Provisions", dated August 25, 1997
(together, the "Purchase Agreement"). In order to induce the Initial Purchaser
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to purchase the Initial Certificates, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser under
the Purchase Agreement.
The parties hereby agrees as follows:
Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
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Affiliate: With respect to any specified person, any other person that,
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directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Broker-Dealer Transfer Restricted Securities: The Exchange Certificates
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that are acquired by a Broker-Dealer in the Exchange Offer in exchange for
Initial Certificates that such Broker-Dealer acquired for its own account as a
result of market-making activities or other trading activities (other than
Initial Certificates acquired directly from any of the Company or its
Affiliates).
Business Day: Any day except a Saturday, Sunday or other day in the
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City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Certificated Securities: As defined in the Trust Agreement.
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Certificates: The Initial Certificates and the Exchange Certificates.
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Closing Date: As defined in the Purchase Agreement.
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Commission: The Securities and Exchange Commission.
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Consummate: The Exchange Offer shall be deemed "Consummated" for
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purposes of this Agreement upon the occurrence of the latest to occur of (a) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Certificates to be issued in the Exchange
Offer, (b) the maintenance of such Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 2(b) hereof, and (c) the issuance by
the Trustee pursuant to the Trust Agreement of the Exchange Certificates in the
same aggregate principal amount as the aggregate principal amount of the Initial
Certificates tendered by Holders thereof pursuant to the Exchange Offer.
Depositary: The Depository Trust Company, or any other depositary
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appointed by the Trust; provided, however, that such depositary must have an
address in the Borough of Manhattan, The City of New York.
Distribution Date: As defined in the Trust Agreement and the
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Certificates.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Certificates: Any of the Receipts on Corporate Securities,
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Series CHR 1998-1, Residual Class Certificates and the Receipts on Corporate
Securities, Series CHR 1998-1, Amortizing Class Certificates to be issued
pursuant to the Trust Agreement (i) in the Exchange Offer, (ii) in exchange for
Exchange Certificates or (iii) upon the request of any Holder of Initial
Certificates covered by a Shelf Registration Statement, in exchange for such
Initial Certificates.
Exchange Offer: The registration by the Company on behalf of the Trust
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under the Act of the Exchange Certificates pursuant to the Exchange Offer
Registration Statement pursuant to which the Company on behalf of the Trust
shall offer the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities for
Exchange Certificates in an aggregate principal amount equal to the aggregate
principal amount of the Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser
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proposes to sell the Initial Certificates to institutional investors which are
"accredited investors" (as defined in Rule 501(a) (1), (2), (3) or (7) under the
Securities Act) or "qualified institutional buyers," as such term is defined in
Rule 144A under the Act.
Holders: With respect to a Transfer Restricted Security, the owner
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thereof.
Indemnified Holder: As defined in Section 6(a).
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NASD: National Association of Securities Dealers, Inc.
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Person: An individual, partnership, corporation, trust, unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Rating Agencies: Xxxxx'x Investors Service, Inc. and Standard & Poor's
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Ratings Services.
Registrar: As defined in the Trust Agreement.
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Registration Default: As defined in Section 4.
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Registration Statement: Any registration statement filed by the Company
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on behalf of the Trust relating to (a) an offering of Exchange Certificates
pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) which is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
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Transfer Restricted Securities.
Shelf Registration Statement: As defined in Section 3(a).
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TIA: The Trust Indenture Act of 1939, as in effect on the date of the
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Trust Agreement.
Transfer Restricted Securities: Each Certificate, until the earliest to
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occur of (a) the date on which such Certificate is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Certificate has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Certificate is disposed of by
a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Certificate is sold pursuant to
Rule 144 under the Act.
Underwritten Offering: An offering in which Certificates are sold to an
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underwriter for reoffering to the public.
Registered Exchange Offer.
Unless (i) the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 4(a)(i) below have been
complied with), and (ii) the credit rating assigned to CHR by both Rating
Agencies falls below investment grade prior to any of the periods described in
this Section 2(a) or Section 2(b) below, the Company shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission within 180
days after the Closing Date, (ii) use its reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective at the earliest
practicable time thereafter, (iii) in connection with the foregoing, (A) file
all pre-effective amendments to such Exchange Offer Registration Statement as
may be necessary in order to cause such Exchange Offer Registration Statement to
become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Exchange Certificates to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange Offer
and (iv) promptly after the effectiveness of such Exchange Offer Registration
Statement, commence and Consummate the Exchange Offer. The Exchange Offer shall
be on the appropriate form permitting registration of the Exchange Certificates
to be offered in exchange for the Initial Certificates that are Transfer
Restricted Securities and to permit sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers as contemplated by Section 2(c) below.
The Company will mail or cause to be mailed to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents. The
Company shall use its best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange Offer open
for a period of not less than 30 days and not more than 45 days after the date
notice of the Exchange Offer is mailed to the Holders; provided, however, that
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in no event shall such period be less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer.
The Company shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Certificates shall be
included in the Exchange Offer Registration Statement. The Company shall use its
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 210 days following the Closing
Date.
The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer which holds the Initial Certificates
that are Transfer Restricted Securities and that were acquired for the account
of such Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Initial Certificates (other than Transfer
Restricted Securities acquired directly from the Company or an Affiliate
thereof) pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with its
initial sale of each Exchange Certificate received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement; provided, however, that by delivering a Prospectus, a
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Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. Such "Plan of Distribution" section shall also contain all
other information with respect to such sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
the Certificates held by any such Broker-Dealer, except to the extent required
by the Commission as a result of a change in policy after the date of this
Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 4(c) below to the extent necessary to
ensure that it is available for sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers, and to ensure that such Registration
Statement conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of one year from the date on which the Exchange Offer is
Consummated.
The Company shall promptly provide sufficient copies of the latest
version of such Prospectus to such Restricted Broker-Dealers promptly upon
request, and in no event later than one day after such request, at any time
during such one-year period in order to facilitate such sales.
The Company shall utilize the services of the Depositary for the
Exchange Offer, if and as permitted pursuant to applicable law.
Shelf Registration.
Shelf Registration. Unless the credit rating assigned to CHR by both
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Rating Agencies falls below investment grade prior to any of the periods
described in this Section 3(a), if (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Exchange Certificates
because the Exchange Offer is not permitted by applicable law (after the
procedures set forth in Section 4(a)(i) below have been complied with) or (ii)
if any Holder of Transfer Restricted Securities shall notify the Company within
20 Business Days following the Consummation of the Exchange Offer that (A) such
Holder was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the Exchange Certificates
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Initial Certificates acquired directly
from the Company or one of its Affiliates, then the Company shall (x) cause to
be filed, on or prior to 60 days after the date on which the Company determines
that it is not required to file the Exchange Offer Registration Statement
pursuant to clause (i) above, or 60 days after the date on which the Company
receives the notice specified in clause (ii) above, a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf Registration
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Statement")) relating to all Transfer Restricted Securities the Holders of which
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shall have provided the information required pursuant to Section 3(b) hereof,
and shall (y) use its best efforts to cause such Shelf Registration Statement to
become effective within 120 days after the date on which the Company becomes
obligated to file such Shelf Registration Statement. The Company shall use its
best efforts to keep the Shelf Registration Statement discussed in this Section
4(a) continuously effective, supplemented and amended as required by and subject
to the provisions of Sections 4(b) and (c) hereof to the extent necessary to
ensure that it is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 3(a), and to ensure that
it conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of not more than one year (as extended pursuant to Section 4(c)(i))
following the date on which such Shelf Registration Statement first becomes
effective under the Act or such shorter period that will terminate when all the
Certificates covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement. The Company shall utilize the services of
the Depositary, if and as permitted pursuant to applicable law.
Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information specified in Item 507 of Regulation S-K under the Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
Registration Procedures.
Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Company shall comply with all applicable provisions of Section 4(c)
below, shall use its best efforts to effect such exchange and to permit the sale
of Broker-Dealer Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
If, following the date hereof there has been published, or otherwise
communicated by the staff of the Commission (the "Staff") a change in Commission
policy with respect to exchange offers such as the Exchange Offer, such that in
the reasonable opinion of counsel to the Company there is a substantial question
as to whether the Exchange Offer is permitted by applicable federal law, the
Company hereby agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company to Consummate an Exchange Offer. The
Company hereby agrees to pursue the issuance of such a decision by the Staff. In
connection with the foregoing, the Company hereby agrees to take all such other
actions as are reasonably requested by the Staff or otherwise reasonably
required in connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the Staff, (B)
delivering to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C) diligently
pursuing a favorable resolution (if possible) by the Commission staff of such
submission.
As a condition to its participation in the Exchange Offer pursuant to
the terms of this Agreement, each Holder of Transfer Restricted Securities shall
furnish, upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which may be contained
in the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company or CHR,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Certificates to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Certificates in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the staff of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
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(the "Xxxxxx Xxxxxxx Letter") and Exxon Capital Holdings Corporation (available
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May 13, 1988) (the "Exxon Capital Letter"), as interpreted in the Commission
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staff's letter to Xxxxxxxx & Sterling dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Exchange Certificates obtained by such Holder in exchange for
Initial Certificates acquired by such Holder directly from the Company or an
Affiliate thereof.
Prior to effectiveness of the Exchange Offer Registration Statement,
the Company shall provide a supplemental letter to the Commission (A) stating
that the Company is registering the Exchange Offer in reliance on the position
of the staff of the Commission enunciated in the Exxon Capital Letter, the
Xxxxxx Xxxxxxx Letter and, if applicable, any no-action letter obtained pursuant
to clause (i) above, (B) including a representation that the Company has not
entered into any arrangement or understanding with any Person to distribute the
Exchange Certificates to be received in the Exchange Offer and that, to the best
of the Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Certificates in its ordinary course of
business and has no arrangement or understanding with any Person to participate
in the distribution of the Exchange Certificates received in the Exchange Offer
and (C) any other undertaking or representation required by the Commission as
set forth in any no-action letter obtained pursuant to clause (i) above.
Shelf Registration Statement. In connection with the Shelf Registration
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Statement, the Company shall comply with all of the provisions of Section 4(c)
below and shall use its best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 3(b)), and pursuant
thereto the Company will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any Exchange
Offer Registration Statement and the related Prospectus, to the extent that the
same are required to be available to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers), the Company shall:
use its best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for the period
specified in Section 2 or 3 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, (1) in the
case of clause (A), correcting any such misstatement or omission, and (2) in the
case of clauses (A) and (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus to
become usable for its intended purposes as soon as practicable thereafter, and
shall advise the underwriter(s), if any, and selling Holders of Certificates
covered by such Registration Statement (and, if requested by such Persons,
confirm such advice in writing) of any circumstances covered by clause (A) or
(B);
prepare and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section
2 or 3, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with Rules 424, 430A, 434 and 462, as applicable, under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
advise the underwriter(s), if any, and selling Holders promptly (and,
if requested by such Persons, confirm such advice in writing), (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the suspension
by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation or threatening of any proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
furnish to the Initial Purchaser, each selling Holder named in any
Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (but excluding
all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with such sale, if any,
for a period of at least five Business Days, and the Company will not file any
such Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (excluding all such documents
incorporated by reference) to which the selling Holders of the Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s) in connection with such sale, if any, shall reasonably object
within five Business Days after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Act;
make available at reasonable times for inspection by the selling
Holders, any managing underwriter participating in any disposition pursuant to
such Registration Statement and any attorney or accountant retained by such
selling Holders or any of such underwriter(s), all financial and other records
relating to the Trust, and cause the officers, directors and employees of the
Company to supply all readily obtainable information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness;
if requested by any selling Holders or the underwriter(s) in connection
with such sale, if any, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase price
being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
furnish to each selling Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
deliver to each selling Holder and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons reasonably
may request; the Company hereby consents to the use (in accordance with law) of
the Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
enter into such agreements (including an underwriting agreement) and
make such representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement as may be reasonably requested by any Holder of
Transfer Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this Agreement,
and in such connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Offering, the Company
shall:
furnish (or in the case of paragraph (2), use its best efforts to
furnish) to each selling Holder and each underwriter, if any, upon the
effectiveness of the Shelf Registration Statement and each post-effective
amendment thereto and to each Restricted Broker-Dealer upon Consummation of the
Exchange Offer and the effective date of any post-effective amendment to the
Exchange Offer Registration Statement:
a certificate, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case may
be, signed on behalf of the Company by the President or any Vice President,
confirming, as of the date thereof, the matters set forth in paragraph (g) of
Section 2 of the Purchase Agreement (to the extent applicable) and such other
matters as the Holders, underwriter(s) and/or Restricted Broker Dealers may
reasonably request; and
a letter, dated the date of Consummation of the Exchange Offer (and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement) or the date of effectiveness of the Shelf Registration
Statement (and each post-effective amendment thereto), as the case may be, of
counsel for the Company substantially to the effect that such counsel have
participated in conferences with officers and other representatives of the
Company and the Trustee, and have considered the matters required to be stated
therein and the statements contained therein, although such counsel have not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advise that, on the basis of the foregoing, no
information came to such counsel's attention that caused such counsel to believe
that the applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective and, in the
case of the Exchange Offer Registration Statement, as of the date of
Consummation of the Exchange Offer or the effective date of any post-effective
amendment to the Exchange Offer Registration Statement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained in such Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further that such counsel assume
no responsibility for and express no advice as to any financial statements,
certificates and schedules thereto, and any other accounting or financial data
included in any Registration Statement contemplated by this Agreement or the
related Prospectus; and
set forth in full or incorporate by reference in the underwriting
agreement, if any, in connection with any sale or resale pursuant to any Shelf
Registration Statement the indemnification provisions and procedures of Section
6 with respect to all parties to be indemnified pursuant to said Section; and
deliver such other documents and certificates as may be reasonably
requested by the selling Holders, the underwriter(s), if any, and Restricted
Broker Dealers, if any, to evidence compliance with clause (A) above and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause (ix).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of the Company contemplated in (A)(1) above
cease to be true and correct, the Company shall so advise the underwriter(s), if
any, the selling Holders and each Restricted Broker-Dealer promptly and, if
requested by such Persons, shall confirm such advice in writing;
prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and its counsel
in connection with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of process
in suits or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not now so subject;
use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (x) above;
subject to Section 4(c)(i), if any fact or event contemplated by
Section 4(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or, if required, post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
provide a CUSIP number for all Initial Certificates or Exchange
Certificates covered by a Registration Statement not later than the effective
date of such Registration Statement; and use its best efforts to ensure that
each class of Exchange Certificates have the same CUSIP number;
cooperate and assist in any filings required to be made with the NASD
and in the performance of any due diligence investigation by any underwriter
(including any "qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the NASD, and use its
best efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
cause the Trust Agreement to be qualified under the TIA not later than
the effective date of the first Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders of Certificates to effect such changes to the Trust Agreement as may be
required for such Trust Agreement to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Trust Agreement to be so qualified in a timely manner; and
provide promptly to each Holder upon request each document filed with
the Commission with respect to the Trust pursuant to the requirements of Section
13 or Section 15(d) of the Exchange Act.
utilize the services of the Depositary, if and as permitted pursuant to
applicable law.
Restrictions on Holders. Each Holder agrees by acquisition of a
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Transfer Restricted Security that, upon receipt of the notice referred to in
Section 4(c)(i) or Section 4(c)(iii)(D), such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(c)(xii), or until
it is advised in writing by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus (the "Advice"). If so directed
by the Company, each Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such Xxxxxx's
possession, of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of either such notice. In the event the
Company shall give any such notice, the time period regarding the effectiveness
of such Registration Statement set forth in Section 2 or 3, as applicable, shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 4(c)(i) or Section 4(c)(iii)(D)
to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 4(c)(xii) or shall have received the Advice.
Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by any purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter") and its counsel
that may be required by the rules and regulations of the NASD); (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Exchange Certificates to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
reasonable fees and disbursements of counsel for the Company and the Trust; (v)
all application and filing fees in connection with listing the Certificates on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all rating agency fees in connection with
obtaining any rating of the Exchange Certificates sought by the Company.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties) and the fees and expenses of any Person,
including special experts, retained by the Company.
The Company will not be responsible for the fees and expenses of
counsel to the Initial Purchaser or any Holder.
Indemnification. The Company agrees to indemnify and hold harmless (i)
each Holder and (ii) each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any Holder (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an "Indemnified Holder"), to the fullest extent lawful, from and against
any and all losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to such Holder furnished in writing to the Company by such Holder
expressly for use therein. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company, such Indemnified Holder shall promptly notify the Company in
writing (provided that the failure to give such notice shall not relieve the
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Company of its obligations pursuant to this Agreement). Such Indemnified Holder
shall have the right to employ its own counsel in any such action and the fees
and expenses of such counsel shall be paid, as incurred, by the Company;
provided, however that such Indemnified Holder shall promptly reimburse the
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Company for any amounts paid in respect of this Section 6(a) if it is ultimately
determined that an Indemnified Holder is not entitled to indemnification
hereunder. The Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings 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 (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by the Holders. The
Company shall be liable for any settlement of any such action or proceeding
effected with its prior written consent, which consent shall not be withheld
unreasonably, and each Company agrees to indemnify and hold harmless each
Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with its written
consent. Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Holder shall have requested an indemnifying party to reimburse the
Indemnified Holder for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than twenty business days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the Indemnified Holder in
accordance with such request prior to the date of such settlement. The Company
shall not, without the prior written consent of each Indemnified Holder, settle
or compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release
of each Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding.
Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company, and its directors,
officers, and any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company, and the respective officers,
directors, partners, employees, representatives and agents of each such person,
to the same extent as the foregoing indemnity from the Company to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Company, and the Company, such directors or officers or
such controlling person shall have the rights and duties given to each Holder by
the preceding paragraph. In no event shall any Holder be liable or responsible
for any amount in excess of the amount by which the total received by such
Holder with respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. This indemnity agreement will
be in addition to any liability that any such Holder may otherwise have.
If the indemnification provided for in this Section 6 is unavailable to
or insufficient to hold harmless an indemnified party under Section 6(a) or
Section 6(b) (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Holders, on the other hand,
from its sale of Transfer Restricted Securities or if such allocation is not
permitted by applicable law, the relative fault of the Company, on the one hand,
and of the Indemnified Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company, on the one hand, and of the Indemnified
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 6(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
6(c) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Holder or
its related Indemnified Holders shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities PLUS (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 6(c) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each of the Holders
hereunder and not joint.
The provisions of this Section 6 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling persons referred to in
this Section 6, and will survive the sale by a Holder of Certificates covered by
a Registration Statement.
Underwritten Offering. No Holder may participate in any Underwritten
Offering hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's Transfer
Restricted Securities on the basis provided in customary underwriting
arrangements entered into in connection therewith and (b) completes and executes
all reasonable questionnaires, powers of attorney, and other documents required
under the terms of such underwriting arrangements.
Selection of Underwriters. For any Underwritten Offering, the
investment banker or investment bankers and manager or managers for any
Underwritten Offering that will administer such offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering. Such investment bankers and managers are
referred to herein as the "underwriters."
Miscellaneous.
Amendments and Waivers. The provisions of this Agreement may not be
-----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 4
hereof and this Section 9(a)(i), the Company has obtained the written consent of
Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, the Company has obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities, provided that, with respect to any matter that directly or
indirectly affects the rights of the Initial Purchaser, the Company shall obtain
the written consent of the Initial Purchaser against which such amendment,
modification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities subject to such Exchange
Offer.
Notices. All notices and other communications provided for or permitted
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hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), or air courier guaranteeing
overnight delivery:
if to a Holder, at the address set forth on the records of the Trustee
under the Trust Agreement; and
if to the Company:
Prudential Securities Structured Assets, Inc.
One New York Plaza
14th Floor
New York, New York 10292
Attention: Xxxxxx Xxxxxxx
and Xxxxxxxx X. Xxxx
if to the Initial Purchaser:
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Transactions Group
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
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Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from such Holder.
Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS-OF-LAW PROVISIONS.
Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, to the extent permitted by law the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of its agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior or contemporaneous
oral, and all prior written, agreements and understandings between the parties
with respect to such subject matter.
Certificates Held by the Company. Whenever the consent or approval of
---------------------------------
Holders of a majority in principal amount of the Transfer Restricted Securities
is required hereunder, the Transfer Restricted Securities held by any of the
Company or its Affiliates (other than subsequent Holders who are deemed to be
Affiliates solely by reason of its holdings of such Transfer Restricted
Securities) shall not be counted in determining whether such consent or approval
was given by Holders of such required majority.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PRUDENTIAL SECURITIES STRUCTURED ASSETS, INC.
By /s/Xxxxxxxx X'Xxxxx
-----------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Vice President
PRUDENTIAL SECURITIES INCORPORATED
By Xxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
