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
This Registration Rights Agreement (this "Agreement") is made and entered
into as of June 9, 1998 by and between Prudential Securities Structured
Assets, Inc., a Delaware corporation (the "Company"), and Prudential
Securities Incorporated (the "Initial Purchaser"), which has agreed pursuant
to the 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"). The Initial Certificates evidence a
class of undivided interest in Receipts on Corporate Securities Trust, Series
CHR 1998-1 (the "Trust") to be formed 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 principally of $57,830,000 aggregate
principal amount of 7.40% Debentures due 2097 (the "Term Assets") issued by
Chrysler Corporation ("CHR") and transferred 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 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.
Affiliate: With respect to any specified person, any other person that,
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.
Broker-Dealer Transfer Restricted Securities: The Exchange Certificates
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 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.
Certificates: The Initial Certificates and the Exchange Certificates.
Closing Date: As defined in the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Consummate: The Exchange Offer shall be deemed "Consummated" for 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
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
Certificates.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Certificates: Any of the Receipts on Corporate Securities,
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
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
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser 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
thereof.
Indemnified Holder: As defined in Section 6(a).
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
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
Ratings Services.
Registrar: As defined in the Trust Agreement.
Registration Default: As defined in Section 4.
Registration Statement: Any registration statement filed by the Company
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
Transfer Restricted Securities.
Shelf Registration Statement: As defined in Section 3(a).
TIA: The Trust Indenture Act of 1939, as in effect on the date of the
Trust Agreement.
Transfer Restricted Securities: Each Certificate, until the earliest to
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
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
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 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
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 Statement")) relating to all Transfer
Restricted Securities the Holders of which 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 Shelf
Registration Statement. No Holder of Transfer Restricted Securities may
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
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) (the "Xxxxxx Xxxxxxx Letter") and Exxon Capital
Holdings Corporation (available May 13, 1988) (the "Exxon Capital Letter"), as
interpreted in the Commission 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
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 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 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 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 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
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 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
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 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 /s/Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
