EXHIBIT 1.1
ABFS MORTGAGE LOAN TRUST 2000-1
MORTGAGE LOAN BACKED NOTES
SERIES 2000-1
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
March 15, 2000
Ladies and Gentlemen:
Prudential Securities Secured Financing Corporation (the
"Depositor") proposes, subject to the terms and conditions stated herein and in
the attached Underwriting Agreement Standard Provisions, dated March 15, 2000
(the "Standard Provisions"), between the Depositor and Prudential Securities
Incorporated, to issue and sell to you (the "Underwriter") the Securities
specified in Schedule I hereto (the "Offered Securities"). The Depositor agrees
that each of the provisions of the Standard Provisions is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Underwriting
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Underwriting
Agreement. Each reference to the "Representative" herein and in the provisions
of the Standard Provisions so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Standard
Provisions are used herein as therein defined. The Prospectus Supplement and the
accompanying Prospectus relating to the Offered Securities (together, the
"Prospectus") are incorporated by reference herein.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, the Depositor agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Depositor, at the time and place and at the purchase price to the
Underwriter and in the manner set forth in Schedule I hereto, the entire
original principal balance of the Offered Securities.
[Remainder of Page Intentionally Left Blank]
2
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:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By:
------------------------------
Name:
Title:
[Signature Page to Underwriting Agreement]
SCHEDULE I
Title of Offered ABFS Mortgage Loan Trust 2000-1, Mortgage
Securities: Backed Notes, Series 2000-1, Class A-1 and
Class A-2.
Terms of Offered The Offered Securities shall have the terms
Securities: 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
March 1, 2000, between the ABFS Mortgage Loan
Trust 2000-1, as issuer, and The Chase
Manhattan Bank, as indenture trustee.
Purchase Price: The purchase price for the Offered Securities
shall be 99.70% and 99.70% of the aggregate
note principal balance of the Class A-1 Notes
and Class A-2 Notes, respectively, as of the
Closing Date, plus accrued interest at the rate
of 7.925% per annum, on the aggregate note
principal balance of the Class A-1 Notes from,
and including March 1, 2000 to, but not
including the Closing Date.
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
AAA by Duff & Xxxxxx Credit Rating Co., if
rated by Duff & Xxxxxx Credit Rating Co.
Closing Date: On or about March 30, 2000 at 10:00 A.M.
eastern standard time or at such other time as
the Depositor and the Underwriter shall agree.
Closing Location: Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-00000.
Name and address of Designated Representative: Prudential
Representative: Securities Incorporated.
Address for Notices, etc.: Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Attn: Managing
Director - Asset Backed Financed Group
STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
March 15, 2000
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. These Standard Provisions shall not be construed as an
obligation of the Depositor to sell any securities or as an obligation of any of
the Underwriters to purchase such securities. The obligation of the Depositor to
sell any securities and the obligation of any of the Underwriters to purchase
any of the securities shall be evidenced by the Underwriting Agreement with
respect to the securities specified therein. An Underwriting Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of the communications
transmitted. The obligations of the underwriters under these Standard Provisions
and each Underwriting Agreement shall be several and not joint. Unless otherwise
defined herein, the terms defined in the Underwriting Agreement are used herein
as defined in the Prospectus referred to below.
1. The Offered Securities. The Depositor proposes to sell pursuant
to the applicable Underwriting Agreement to the several Underwriters named
therein business purpose loans and home equity loan backed notes (the
"Securities") representing indebtedness secured primarily by the property of a
trust which consists of three pools of business purpose loans and home equity
loans (the "Mortgage Loans") and certain related property. The Securities will
be issued pursuant to an Indenture (the "Indenture") by and between ABFS
Mortgage Loan Trust 2000-1, as issuer (the "Issuer"), and The Chase Manhattan
Bank, as indenture trustee (the "Indenture Trustee"). The Mortgage Loans will be
purchased by the Depositor pursuant to an Unaffiliated Seller's Agreement (the
"Unaffiliated Seller's Agreement") by and among the Depositor, ABFS 2000-1, Inc.
(the "Unaffiliated Seller"), American Business Credit, Inc. ("ABC"),
HomeAmerican Credit, Inc. d/b/a Upland Mortgage ("Upland") and New Jersey
Mortgage and Investment Corp ("NJMIC" and, collectively with ABC and Upland, the
"Originators"). The Mortgage Loans will be sold by the Depositor to the Issuer
pursuant to the terms of a Sale and Servicing Agreement (the "Sale and Servicing
Agreement") among the Issuer, the Depositor, the Indenture Trustee, Chase Bank
of Texas, N.A., as collateral agent (the "Collateral Agent"), and ABC, as
servicer (in such capacity, the "Servicer").
The terms and rights of any particular issuance of Securities shall
be as specified in the Underwriting Agreement relating thereto and in or
pursuant to the Indenture identified in such Underwriting Agreement. The
Securities which are the subject of any particular
Underwriting Agreement into which these Standard Provisions are incorporated are
herein referred to as the "Offered Securities."
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File No. 333-75489),
including a prospectus relating to the Securities under the Securities Act of
1933, as amended (the "1933 Act"). The term "Registration Statement" means such
registration statement as amended to the date of the Underwriting Agreement. The
term "Base Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Base Prospectus together with the
prospectus supplement specifically relating to the Offered Securities, as first
filed with the Commission pursuant to Rule 424. The term "Preliminary
Prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities together with the Base Prospectus.
2. Offering by the Underwriters. Upon the execution of the
Underwriting Agreement applicable to any Offered Securities and the
authorization by the Representative of the release of such Offered Securities,
the several Underwriters propose to offer for sale to the public the Offered
Securities at the prices and upon the terms set forth in the Prospectus.
3. Purchase, Sale and Delivery of the Offered Securities. Unless
otherwise specified in the Underwriting Agreement, payment for the Offered
Securities shall be made by certified or official bank check or checks payable
to the order of the Depositor in immediately available or next day funds, at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Representative for the respective accounts of the several Underwriters of the
Offered Securities registered in definitive form and in such names and in such
denominations as the Representative shall request in writing not less than five
full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Offered Securities are herein referred
to as the "Closing Date".
4. Conditions of the Underwriters' Obligations. The respective
obligations of the several Underwriters pursuant to the Underwriting Agreement
shall be subject, in the discretion of the Representative, to the accuracy in
all material respects of the representations and warranties of the Depositor
contained herein as of the date of the Underwriting Agreement and as of the
Closing Date as if made on and as of the Closing Date, to the accuracy in all
material respects of the statements of the officers of the Issuer, the Depositor
and the Servicer made in any certificates pursuant to the provisions hereof and
of the Underwriting Agreement, to the performance by the Depositor of its
covenants and agreements contained herein and to the following additional
conditions precedent:
(a) All actions required to be taken and all filings required
to be made by or on behalf of the Depositor under the 1933 Act and
the Securities Exchange Act of 1934, as amended (the "1934 Act")
prior to the sale of the Offered Securities shall have been duly
taken or made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect; (ii) no proceedings for
such purpose shall be pending before or threatened by the
Commission, or by any authority administering any state securities
or "Blue Sky" laws; (iii) any requests for additional information
on the part of the Commission shall have been complied with to the
Representative's reasonable satisfaction; (iv) since the respective
dates as of which information is given in the Registration Statement
and the Prospectus except as otherwise stated therein, there shall
have been no material adverse change in the condition, financial or
otherwise, earnings, affairs, regulatory situation or business
prospects of the Depositor; (v) there are no material actions, suits
or proceedings pending before any court or governmental agency,
authority or body or threatened, affecting the Depositor or the
transactions contemplated by the Underwriting Agreement; (vi) the
Depositor is not in violation of its charter or its by-laws or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it or its properties may be
bound, which violations or defaults separately or in the aggregate
would have a material adverse effect on the Depositor; and (vii) the
Representative shall have received, on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Depositor, to the foregoing effect.
(c) Subsequent to the execution of the Underwriting Agreement,
there shall not have occurred any of the following: (i) if at or
prior to the Closing Date, trading in securities on the New York
Stock Exchange shall have been suspended or any material limitation
in trading in securities generally shall have been established on
such exchange, or a banking moratorium shall have been declared by
New York State or federal authorities; (ii) if at or prior to the
Closing Date, there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power, or of
any other insurrection or armed conflict involving the United States
which results in the declaration of a national emergency or war,
and, in the reasonable opinion of the Representative, makes it
impracticable or inadvisable to offer or sell the Offered
Securities; or (iii) if at or prior to the Closing Date, a general
moratorium on commercial banking activities in the State of New York
shall have been declared by either federal or New York State
authorities.
(d) The Representative shall have received, on the Closing
Date, a certificate dated the Closing Date and signed by an
executive officer of the Depositor to the effect that attached
thereto is a true and correct copy of the letter from each
nationally recognized statistical rating organization (as that term
is defined by the Commission for purposes of Rule 436(g)(2) under
the 0000 Xxx) that rated the Offered Securities and confirming that,
unless otherwise specified in the Underwriting Agreement, the
Offered Securities have been 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 & Xxxx LLP, special counsel for the
Depositor, dated the Closing Date, in form and substance
satisfactory to the Representative and containing opinions
substantially to the effect set forth in Exhibit A hereto.
(f) The Representative shall have received, on the Closing
Date, an opinion of counsel for the Servicer, the Unaffiliated
Seller and the Originators, dated the Closing Date, in form and
substance satisfactory to the Representative and counsel for the
Underwriters and containing opinions substantially to the effect set
forth in Exhibit B hereto.
(g) The Representative shall have received, on the Closing
Date, an opinion of counsel for the Indenture Trustee, dated the
Closing Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters and containing
opinions substantially to the effect set forth in Exhibit C hereto.
(h) The Representative shall have received, on the Closing
Date, an opinion of counsel for the Issuer and First Union Trust
Company, National Association, as owner trustee (the "Owner
Trustee"), dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters
and containing opinions substantially to the effect set forth in
Exhibit D hereto.
(i) The Representative shall have received, on the Closing
Date, an opinion of Xxxxx & Wood LLP, special counsel for the
Depositor, dated the Closing Date, with respect to the incorporation
of the Depositor, the validity of the Offered Securities, the
Registration Statement, the Prospectus and other related matters as
the Underwriters may reasonably require, and the Depositor shall
have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(j) The Representative shall have received, on or prior to the
date of first use of the prospectus supplement relating to the
Offered Securities, and on the Closing Date if requested by the
Representative, letters of independent accountants of the Depositor
in the form and reflecting the performance of the procedures
previously requested by the Representative.
(k) The Depositor shall have furnished or caused to be
furnished to the Representative on the Closing Date a certificate of
an executive officer of the Depositor satisfactory to the
Representative as to the accuracy of the representations and
warranties of the Depositor herein at and as of such Closing Date as
if made as of such date, as to the performance by the Depositor of
all of its obligations hereunder to be performed at or prior to such
Closing Date, and as to such other matters as the Representative may
reasonably request;
(l) The Servicer shall have furnished or caused to be
furnished to the Representative on the Closing Date a certificate of
officers of such Servicer in form and substance reasonably
satisfactory to the Representative;
(m) The Note Insurance Policy shall have been duly executed
and issued at or prior to the Closing Date and shall conform in all
material respects to the description thereof in the Prospectus
Supplement.
(n) The Representative shall have received, on the Closing
Date, an opinion of counsel to Ambac Assurance Corporation (the
"Note Insurer"), dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters
and containing opinions as to such matters as the Representative may
reasonably request.
(o) On or prior to the Closing Date there shall not have
occurred any downgrading, nor shall any notice have been given of
(i) any intended or potential downgrading or (ii) any review or
possible change in rating the direction of which has not been
indicated, in the rating accorded the Note Insurer's claims paying
ability by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the 1933 Act.
(p) There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since
December 31, 1999, of the Note Insurer, that is in the
Representative's judgment material and adverse and that makes it in
the Representative's judgment impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(q) The Representative shall have been furnished such further
information, certificates, documents and opinions as the
Representative may reasonably request.
5. Covenants of the Depositor. In further consideration of the
agreements of the Underwriters contained in the Underwriting Agreement, the
Depositor covenants as follows:
(a) To furnish the Representative, without charge, copies of
the Registration Statement and any amendments thereto including
exhibits and as many copies of the Prospectus and any supplements
and amendments thereto as the Representative may from time to time
reasonably request.
(b) Immediately following the execution of the Underwriting
Agreement, the Depositor will prepare a prospectus supplement
setting forth the principal amount, notional amount or stated
amount, as applicable, of Offered Securities covered thereby, the
price at which the Offered Securities are to be purchased by the
Underwriters from the Depositor, either the initial public offering
price or prices or the method by which the price or prices at which
the Offered Securities are to be sold will be determined, the
selling concessions and reallowances, if any, any delayed delivery
arrangements, and such other information as the Representative and
the Depositor deem appropriate in connection with the offering of
the Offered Securities, but the Depositor will not file any
amendment to the Registration Statement or any supplement to the
Prospectus of which the Representative shall not previously have
been advised and furnished with a copy a reasonable time prior to
the proposed filing or to which the Representative shall have
reasonably objected. The Depositor will use
its best efforts to cause any amendment to the Registration
Statement to become effective as promptly as possible. During the
time when a Prospectus is required to be delivered under the 1933
Act, the Depositor will comply so far as it is able with all
requirements imposed upon it by the 1933 Act and the rules and
regulations thereunder to the extent necessary to permit the
continuance of sales or of dealings in the Offered Securities in
accordance with the provisions hereof and of the Prospectus, and the
Depositor will prepare and file with the Commission, promptly upon
request by the Representative, any amendments to the Registration
Statement or supplements to the Prospectus which may be necessary or
advisable in connection with the distribution of the Offered
Securities by the Underwriters, and will use its best efforts to
cause the same to become effective as promptly as possible. The
Depositor will advise the Representative, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement or any amended Registration Statement has become effective
or any supplement to the Prospectus or any amended Prospectus has
been filed. The Depositor will advise the Representative, promptly
after it receives notice or obtains knowledge thereof, of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing
or suspending the use of any preliminary Prospectus or the
Prospectus, or the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose, or
of any request made by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information, and the Depositor will use its best efforts
to prevent the issuance of any such stop order or any order
suspending any such qualification, and if any such order is issued,
to obtain the lifting thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact,
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary for any other reason to amend or supplement the
Prospectus to comply with the 1933 Act, to promptly notify the
Representative thereof and upon their request to prepare and file
with the Commission, at the Depositor's own expense, an amendment or
supplement which will correct such statement or omission or any
amendment which will effect such compliance.
(d) During the period when a prospectus is required by law to
be delivered in connection with the sale of the Offered Securities
pursuant to the Underwriting Agreement, the Depositor will file, on
a timely and complete basis, all documents that are required to be
filed by the Depositor with the Commission pursuant to Sections 13,
14, or 15(d) of the 1934 Act.
(e) To qualify the Offered Securities for offer and sale under
the securities or "Blue Sky" laws of such jurisdictions as the
Representative shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) in connection with
such qualification of the eligibility of the Offered Securities for
investment under the laws of such jurisdictions as the
Representative may designate provided that in connection therewith
the Depositor shall not be required to qualify to do business or to
file a general consent to service of process in any jurisdiction.
(f) To make generally available to the Depositor's security
holders, as soon as practicable, but in any event not later than
eighteen months after the date on which the filing of the
Prospectus, as amended or supplemented, pursuant to Rule 424 under
the 1933 Act first occurs, an earnings statement of the Depositor
covering a twelve-month period beginning after the date of the
Underwriting Agreement, which shall satisfy the provisions of
Section 11(a) of the 1933 Act and the applicable rules and
regulations of the Commission thereunder (including, at the option
of the Depositor, Rule 158).
(g) For so long as any of the Offered Securities remain
outstanding, to furnish to the Representative upon request in
writing copies of such financial statements and other periodic and
special reports as the Depositor may from time to time distribute
generally to its creditors or the holders of the Offered Securities
and to furnish to the Representative copies of each annual or other
report the Depositor shall be required to file with the Commission.
(h) For so long as any of the Offered Securities remain
outstanding, the Depositor will, or will cause the Servicer to,
furnish to the Representative, as soon as available, a copy of (i)
the annual statement of compliance delivered by the Servicer to the
Indenture Trustee under the applicable Sale and Servicing Agreement,
(ii) the annual independent public accountants' servicing report
furnished to the Indenture Trustee pursuant to the applicable Sale
and Servicing Agreement, (iii) each report regarding the Offered
Securities mailed to the holders of such Securities, and (iv) from
time to time, such other information concerning such Securities as
the Representative may reasonably request.
6. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, each Underwriter, as of the date of
the Underwriting Agreement, as follows:
(a) The Registration Statement including a prospectus relating
to the Securities and the offering thereof from time to time in
accordance with Rule 415 under the 1933 Act has been filed with the
Commission and such Registration Statement, as amended to the date
of the Underwriting Agreement, has become effective. No stop order
suspending the effectiveness of such Registration Statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission. A prospectus supplement specifically
relating to the Offered Securities will be filed with the Commission
pursuant to Rule 424
under the 1933 Act; provided, however, that a supplement to the
Prospectus prepared pursuant to Section 5(b) hereof shall be deemed
to have supplemented the 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
includes any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and neither of such documents
as amended or supplemented, if applicable, will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does
not apply to statements or omissions in any of such documents based
upon written information furnished to the Depositor by any
Underwriter specifically for use therein.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse change
in the condition, financial or otherwise, earnings, affairs,
regulatory situation or business prospects of the Depositor, whether
or not arising in the ordinary course of the business of the
Depositor.
(d) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(e) The Depositor has all requisite power and authority
(corporate and other) and all requisite authorizations, approvals,
orders, licenses, certificates and permits of and from all
government or regulatory officials and bodies to own its properties,
to conduct its business as described in the Registration Statement
and the Prospectus and to execute, deliver and perform these
Standard Provisions, the Underwriting Agreement, the Unaffiliated
Seller's Agreement and the Sale and Servicing Agreement, except such
as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution by
the Underwriter of the Offered Securities; all such authorizations,
approvals, orders, licenses, certificates are in full force and
effect and contain no unduly burdensome provisions; and, except as
set forth or contemplated in the Registration Statement or the
Prospectus, there are no legal or governmental proceedings pending
or, to the best knowledge of the Depositor, threatened that would
result in a material modification, suspension or revocation thereof.
(f) The Offered Securities have been duly authorized, and when
the Offered Securities are issued and delivered pursuant to the
Underwriting Agreement, the Offered Securities will have been duly
executed, issued and delivered and will be entitled to the benefits
provided by the applicable Indenture, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity (regardless of
whether the entitlement to such benefits is considered in a
proceeding in equity or at law), and will conform in substance to
the description thereof contained in the Registration Statement and
the Prospectus, and will in all material respects be in the form
contemplated by the Indenture.
(g) The execution and delivery by the Depositor of these
Standard Provisions, the Underwriting Agreement, the Unaffiliated
Seller's Agreement and the Sale and Servicing Agreement are within
the corporate power of the Depositor and none of the execution and
delivery by the Depositor of these Standard Provisions, the
Underwriting Agreement, the Unaffiliated Seller's Agreement and the
Sale and Servicing Agreement, the consummation by the Depositor of
the transactions therein contemplated, or the compliance by the
Depositor with the provisions thereof, will conflict with or result
in a breach of, or constitute a default under, the charter or the
by-laws of the Depositor or any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties, or any of the provisions of any
indenture, mortgage, contract or other instrument to which the
Depositor is a party or by which it is bound, or will result in the
creation or imposition of a lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, except such as have been obtained
under the 1933 Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters.
(h) The Underwriting Agreement has been, and at the Closing
Date the Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement will have been, duly authorized, executed and delivered by
the Depositor.
(i) At the Closing Date, each of the Underwriting Agreement,
the Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement will constitute a legal, valid and binding obligation of
the Depositor, enforceable
against the Depositor, in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the
rights of creditors generally, and to general principles of equity
and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law).
(j) No filing or registration with, notice to, or consent,
approval, non-disapproval, authorization or order or other action
of, any court or governmental authority or agency is required for
the consummation by the Depositor of the transactions contemplated
by the Underwriting Agreement, the Unaffiliated Seller's Agreement
or the Sale and Servicing Agreement, except such as have been
obtained and except such as may be required under the 1933 Act, the
rules and regulations thereunder, or state securities or "Blue Sky"
laws, in connection with the purchase and distribution of the
Offered Securities by the Underwriters.
(k) The Depositor owns or possesses or has obtained all
material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease, own or license, as the
case may be, and to operate, its properties and to carry on its
business as presently conducted and has received no notice of
proceedings relating to the revocation of any such license, permit,
consent, order or approval, which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business, results of
operations, net worth or condition (financial or otherwise) of the
Depositor.
(l) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Depositor is a party or of which any property of the Depositor is
the subject which, if determined adversely to the Depositor would
individually or in the aggregate have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, or
business or business prospects of the Depositor and, to the best of
the Depositor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(m) Each of the Offered Securities will, when issued, be a
"mortgage related security" as such term is defined in Section
3(a)(41) of the 1934 Act.
(n) At the Closing Date or any Subsequent Transfer Date, as
the case may be, each of the Mortgage Loans which is a subject of
the Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement and all such Mortgage Loans in the aggregate will meet the
criteria for selection described in the Prospectus, and at the
Closing Date or any Subsequent Transfer Date, as the case may be,
the representations and warranties made by the Depositor both the
Unaffiliated Seller's Agreement and the Sale and Servicing Agreement
will be true and correct as of such date.
(o) At the time of execution and delivery of the Unaffiliated
Seller's Agreement and the Sale and Servicing Agreement and on any
Subsequent Transfer Date, as the case may be, the Depositor will
have good and marketable title to the Mortgage Loans being
transferred to the Issuer pursuant to the Sale and Servicing
Agreement, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"), and will not have assigned to any person (other than the
Issuer and the Indenture Trustee) any of its right, title or
interest in such Mortgage Loans or in such Unaffiliated Seller's
Agreement or such Sale and Servicing Agreement or the Offered
Securities being issued pursuant thereto, the Depositor will have
the power and authority to transfer such Mortgage Loans to the
Issuer and to transfer the Offered Securities to each of the
Underwriters, and upon execution and delivery to the Issuer of the
Sale and Servicing Agreement and delivery to each of the
Underwriters of the Offered Securities, and on any Subsequent
Transfer Date, as the case may be, the 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.
(p) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Underwriting Agreement, these Standard Provisions, the Indenture,
the Sale and Servicing Agreement and the Offered Securities have
been or will be paid at or prior to the Closing Date.
7. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless each
Underwriter (including Prudential Securities Incorporated acting in its capacity
as Representative and as one of the Underwriters), and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Depositor will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with (1)
written information furnished to the Depositor by any Underwriter through the
Representative specifically for use therein or (2) information regarding the
Mortgage Loans except to the extent that the Depositor has been indemnified by
the Servicer.
This indemnity agreement will be in addition to any liability which the
Depositor may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Depositor,
each of the Depositor's directors, each of the Depositor's officers who signed
the Registration Statement and each person, if any, who controls the Depositor,
within the meaning of the 1933 Act, against any losses, claims, damages or
liabilities to which the Depositor, or any such director, officer or controlling
person may become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or any other
prospectus relating to the Offered Securities, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statements or
alleged untrue statements or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Depositor by
any Underwriter through the Representative specifically for use therein; and
each Underwriter will reimburse 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 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by the
Depositor on the one hand, and the Underwriters on the other, from the offering
of the Offered Securities (taking into account the portion of the proceeds of
the offering realized by each), the Depositor's and the Underwriters' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Depositor and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose). No Underwriter or person controlling such Underwriter shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total underwriting fee of the Offered Securities purchased by such Underwriter
under the Underwriting Agreement, less the aggregate
amount of any damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any substantially
similar claim. The Underwriters' obligation to contribute hereunder are several
in proportion to their respective underwriting obligations and not joint. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Depositor, each
officer of the Depositor who signed the Registration Statement, and each person,
if any, who controls the Depositor within the meaning of Section 15 of the 1933
Act, shall have the same rights to contribution as the Depositor.
(d) The parties hereto agree that the first sentence of Section 5 of
the Indemnification Agreement (the "Indemnification Agreement") dated as of the
Closing Date among the Note Insurer, the Servicer, the Originators, the
Unaffiliated Seller, the Issuer, the Depositor and the Underwriter shall not be
construed as limiting the Depositor's right to enforce its rights under Section
7 of these Standard Provisions. The parties further agree that, as between the
parties hereto, to the extent that the provisions of Section 5 of the
Indemnification Agreement conflict with Section 7 hereof, the provisions of
Section 7 hereof shall govern.
8. Survival of Certain Representations and Obligations. The
respective representations, warranties, agreements, covenants, indemnities and
other statements of the Depositor, 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.
9. Termination.
(e) 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.
(f) 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.
(g) Termination of the Underwriting Agreement pursuant to this
Section 9 shall be without liability of any party to any other party other than
as provided in Sections 7 and 11 hereof.
10. Default of Underwriters. If any Underwriter or Underwriters
defaults or default in their obligation to purchase Offered Securities which it
or they have agreed to purchase under the Underwriting Agreement and the
aggregate principal amount of the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent (10%)
or less of the aggregate principal amount, notional amount or stated amount, as
applicable, of the Offered Securities to be sold under the Underwriting
Agreement, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments under the Underwriting Agreement to purchase the
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so defaults or default
and the aggregate principal amount of the Offered Securities with respect to
which such default or defaults occurs or occur is more than ten percent (10%) of
the aggregate principal amount, notional amount or stated amount, as applicable,
of Offered Securities to be sold under the Underwriting Agreement, as the case
may be, and arrangements satisfactory to the Representative and the Depositor
for the purchase of such Offered Securities by other persons (who may include
one or more of the non-defaulting Underwriters including the Representative) are
not made within 36 hours after any such default, the Underwriting Agreement will
terminate without liability on the part of any non-defaulting Underwriters or
the Depositor except for the expenses to be paid or reimbursed by the Depositor
pursuant to Section 11 hereof. As used in the Underwriting Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10. Nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. Expenses. 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.
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, Xxx Xxx Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Managing Director-Asset Backed Finance Group;
provided, however, that any notice to any Underwriter pursuant to the
Underwriting Agreement shall be mailed, delivered or telegraphed and confirmed
to such Underwriter at the address furnished by it.
13. Representative of Underwriters. Any Representative identified in
the Underwriting Agreement will act for the Underwriters of the Offered
Securities and any action taken by the Representative under the Underwriting
Agreement will be binding upon all of such Underwriters.
14. Successors. The Underwriting Agreement shall inure to the
benefit of and shall be binding upon the several Underwriters and the Depositor
and their respective successors and legal representatives, and nothing expressed
or mentioned herein or in the Underwriting Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of the Underwriting Agreement, or any provisions herein
contained, the Underwriting Agreement and all conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the
representations and warranties of the Depositor contained herein or in the
Underwriting Agreement shall also be for the benefit of any person or persons
who controls or control any Underwriter within the meaning of Section 15 of the
1933 Act, and (ii) the indemnities by the several Underwriters shall also be for
the benefit of the directors of the Depositor, the officers of the Depositor who
have signed the Registration Statement and any person or persons who control the
Depositor within the meaning of Section 15 of the 1933 Act. No purchaser of the
Offered Securities from any Underwriter shall be deemed a successor because of
such purchase. These Standard Provisions and each Underwriting Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
15. Time of the Essence. Time shall be of the essence of each
Underwriting Agreement.
16. Governing Law. These Standard Provisions and each Underwriting
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
[Signature Page Follows]
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By:
---------------------------------
Name:
Title:
[Signature Page to Underwriting Agreement Standard Provisions]
Exhibit A
Opinions of Xxxxx & Xxxx LLP,
special counsel for the Depositor
---------------------------------
(1) Each of the Unaffiliated Seller's Agreement, the Sale and
Servicing Agreement, the Underwriting Agreement and the Standard Provisions
(collectively, with the Indenture and the Indemnification Agreement, the
"Documents") constitutes the valid, legal and binding agreement of the
Depositor, and is enforceable against the Depositor in accordance with its
terms.
(2) The Notes, assuming the due execution by the Issuer and due
authentication by the Indenture Trustee and payment therefor pursuant to the
Underwriting Agreement, are validly issued and outstanding and are entitled to
the benefits of the Indenture.
(3) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required under
federal laws or the laws of the State of New York for the execution, delivery
and performance of the Documents or the offer, issuance, sale or delivery of the
Notes or the consummation of any other transaction contemplated thereby by the
Depositor, except such which have been obtained.
(4) The Registration Statement and the Prospectus (other than the
financial and statistical data included therein, as to which we are not called
upon to express any opinion), at the time the Registration Statement became
effective, as of the date of execution of the Underwriting Agreement and as of
the date hereof comply as to form in all material respects with the requirements
of the 1933 Act and the rules and regulations thereunder, and the Exchange Act
and the rules and regulations thereunder, and we do not know of any amendment to
the Registration Statement required to be filed, or of any contracts, indentures
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus, which has not been filed or described as required.
(5) The registration of the Trust Estate created by the Indenture
under the Investment Company Act of 1940 is not required.
(6) The statements in the Prospectus Supplement set forth under the
caption "DESCRIPTION OF THE NOTES," to the extent such statements purport to
summarize certain provisions of the Notes or of the Indenture, or of the Sale
and Servicing Agreement or of the Unaffiliated Seller's Agreement, are fair and
accurate in all material respects.
Exhibit B
Opinions of Counsel to
the Servicer
----------------------
(1) The Servicer has been duly organized and is validly existing as
a corporation in good standing under the federal laws of the United States and
is duly qualified to transact business in the State of Pennsylvania.
(2) The Servicer has the requisite power and authority to execute
and deliver, engage in the transactions contemplated by, and perform and observe
the conditions of, each of the Documents to which it is a party.
(3) Each of the Documents to which the Servicer is a party have been
duly and validly authorized, executed and delivered by the Servicer, all
requisite corporate action having been taken with respect thereto, and each
constitutes the valid, legal and binding agreement of the Servicer, and are
enforceable against the Servicer in accordance with their respective terms.
(4) Neither the transfer of the Mortgage Loans to the Unaffiliated
Seller, nor the execution, delivery or performance by the Servicer of the each
of the Documents to which it is a party (A) conflicts or will conflict with or
results or will result in a breach of, or constitutes or will constitute a
default under or violates or will violate, (i) any term or provision of the
charter or by-laws of the Servicer; (ii) any term or provision of any material
agreement, contract, instrument or indenture, to which the Servicer or any of
its subsidiaries is a party or is bound; or (iii) any order, judgment, writ,
injunction or decree of any court or governmental agency or body or other
tribunal having jurisdiction over the Servicer or any of its properties; or (B)
results in, or will result in the creation or imposition of any lien, charge or
encumbrance upon the Trust Estate or upon the Notes, except as otherwise
contemplated by the Indenture.
(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 Unaffiliated Seller and its
assignees all right, title and interest of the Servicer in the Mortgage Note and
Mortgage, as noteholder and mortgagee or assignee thereof.
(6) No consent, approval, authorization or order of, registration or
qualification of or with or notice to, any court, governmental agency or body or
other tribunal is required under the laws of the State of New York or the
Commonwealth of Pennsylvania, for the execution, delivery and performance of
each of the Documents to which it is a party or the consummation of any other
transaction contemplated thereby by the Servicer, except such which have been
obtained.
(7) There are no legal or governmental suits, proceedings or
investigations pending or, to such counsel's knowledge, threatened against the
Servicer before any court, governmental agency or body or other tribunal (A)
which, if determined adversely to the Servicer, would individually or in the
aggregate have a material adverse effect on (i) the consolidated financial
position, business prospects, stockholders' equity or results of operations of
the Servicer; (ii) the Servicer's ability to perform its obligations under, or
the validity or enforceability of, each of the Documents to which it is a party;
(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.
Exhibit C
Opinions of Counsel to
the Indenture
Trustee
----------------------
(1) The Indenture Trustee is a New York banking corporation duly
organized, validly existing and in good standing under the laws of the New York
and has the power and authority to enter into and to take all actions required
of it under the Indenture.
(2) Each of the Documents to which the Indenture Trustee is a party
have been duly authorized, executed and delivered by the Indenture Trustee and
each such Document constitutes the legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in accordance with
its terms, except as enforceability thereof may be limited by (A) bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, as such laws would apply in the event of a
bankruptcy, insolvency or reorganization or similar occurrence affecting the
Indenture Trustee, and (B) general principles of equity regardless of whether
such enforcement is sought in a proceeding at law or in equity.
(3) No consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part of the
Indenture Trustee in connection with its execution and delivery of each of the
Documents to which it is a party or the performance of its obligations
thereunder.
(4) The Notes have been duly authenticated and delivered by the
Indenture Trustee.
(5) The execution and delivery of, and performance by the Indenture
Trustee of its obligations under, each of the Documents to which it is a party
do not conflict with or result in a violation of any statute or regulation
applicable to the Indenture Trustee, or the charter or bylaws of the Indenture
Trustee, or to the best knowledge of such counsel, any governmental authority
having jurisdiction over the Indenture Trustee or the terms of any indenture or
other agreement or instrument to which the Indenture Trustee is a party or by
which it is bound.
Exhibit D
Opinions of Counsel to
the Issuer
----------------------
(1) The Issuer is a Delaware business trust duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the power and authority to enter into and to take all actions required of it
under the each of the Documents to which it is a party.
(2) Each of the Documents to which the Issuer is a party have been
duly authorized, executed and delivered by the Issuer and each such Document
constitutes the legal, valid and binding obligation of the Issuer, enforceable
against the Issuer in accordance with its terms, except as enforceability
thereof may be limited by (A) bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally, as such
laws would apply in the event of a bankruptcy, insolvency or reorganization or
similar occurrence affecting the Issuer, and (B) general principles of equity
regardless of whether such enforcement is sought in a proceeding at law or in
equity.
(3) No consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part of the
Issuer in connection with its execution and delivery of the Documents to which
it is a party or the performance of its obligations thereunder.
(4) The Notes have been duly executed and delivered by the Issuer.
(5) The execution and delivery of, and performance by the Issuer of
its obligations under each of the Documents to which it is a party do not
conflict with or result in a violation of any statute or regulation applicable
to the Issuer, or the certificate of trust of the Issuer, or to the best
knowledge of such counsel, any governmental authority having jurisdiction over
the Issuer or the terms of any indenture or other agreement or instrument to
which the Issuer is a party or by which it is bound.
