MORTGAGE LENDERS NETWORK HOME EQUITY LOAN TRUST 2000-1
PASS-THROUGH CERTIFICATES
SERIES 2000-1
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 10, 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 April 10,
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]
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 Securities: Mortgage Lenders Network Home Equity Loan
Trust 2000-1, Pass-Through Certificates,
Series 2000-1, Class A-1, Class A-2, Class
A-3, Class A-4 and Class A-5.
Terms of Offered Securities: The Offered Securities shall have the terms
set forth in the Prospectus and shall
conform in all material respects to the
descriptions thereof contained therein, and
shall be issued pursuant to a Pooling and
Servicing Agreement, to be dated as of
April 1, 2000, among the Depositor,
Mortgage Lenders Network USA, Inc., as
seller and servicer and Norwest Bank
Minnesota, National Association, as
trustee.
Purchase Price: The purchase price for the Offered
Securities shall be 99.75% of the aggregate
certificate principal balance of the Class
A-1 Certificates, the Class A-2
Certificates, Class A-3 Certificates, Class
A-4 Certificates and Class A-5
Certificates, as of the Closing Date, plus
accrued interest at the per annum rate of
7.605% for Class A-2 Certificate, 7.770% for
Class A-3 Certificate, 8.040% for Class A-4
Certificate, and 7.670% for Class A-5
Certificate, on the aggregate certificate
principal balance of the Class A-2
Certificates, Class A-3 Certificates, Class
A-4 Certificates and Class A-5 Certificates
from, and including April 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.
Closing Date: On or about April 14, 2000 at 10:00 A.M.
eastern standard time or at such other time
as the Depositor and the Underwriter shall
agree.
Closing Location: Brown & Wood LLP, 0000 X Xxxxxx, Xxxxxxxxxx,
XX 00000.
Name and address of
Representative: Designated Representative: Prudential
Securities Incorporated.
Address for Notices, etc.: Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Director - Asset Backed
Financed Group
STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
April 10, 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 residential mortgage loan backed certificates (the "Securities")
representing indebtedness secured primarily by the property of a trust which
consists of a pool of fixed and adjustable rate, first and junior lien
residential mortgage loans (the "Mortgage Loans") and certain related
property. The Securities will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") by and among Mortgage
Lenders Network USA, Inc., as seller (in such capacity, the "Seller") and
Servicer (in such capacity, the "Servicer") and Mortgage Lenders Network Home
Equity Loan Trust 2000-1 (the "Trust"), and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"). The Mortgage Loans will be purchased
by the Depositor pursuant to a Mortgage Loan Purchase Agreement (the "Mortgage
Loan Purchase Agreement") by and between the Depositor and the Seller. The
Mortgage Loans will be sold by the Depositor to the Trust pursuant to the
terms of the Xxxxxx and Servicing Agreement.
The terms and rights of any particular issuance of Securities shall
be as specified in the Underwriting Agreement relating thereto and in or
pursuant to the Pooling and Servicing Agreement identified in such
Underwriting Agreement. The Securities which are the subject of any particular
Underwriting Agreement into which 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 Trust, 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 1933 Act) that rated the Offered Securities and
confirming that, unless otherwise specified in the Underwriting
Agreement, the Offered Securities have been rated in the highest rating
categories by each such organization and that each such rating has not
been rescinded since the date of the applicable letter.
(e) The Representative shall have received, on the Closing Date, an
opinion of Xxxxx & Wood 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 Seller and the Servicer, dated the Closing
Date, in form and substance satisfactory to the Representative and
counsel for the Underwriters and containing opinions substantially to the
effect set forth in Exhibit B hereto.
(g) The Representative shall have received, on the Closing Date, an
opinion of counsel for the Trustee, dated the Closing Date, in form and
substance satisfactory to the Representative and counsel for the
Underwriters and containing opinions substantially to the effect set
forth in Exhibit C hereto.
(h) The Representative shall have received, on the Closing Date, an
opinion of Xxxxx & 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.
(i) The Representative shall have received, on or prior to the date
of first use of the prospectus supplement relating to the Offered
Securities, and on the Closing Date if requested by the Representative,
letters of independent accountants of the Depositor in the form and
reflecting the performance of the procedures previously requested by the
Representative.
(j) The Depositor shall have furnished or caused to be furnished to
the Representative on the Closing Date a certificate of an executive
officer of the Depositor satisfactory to the Representative as to the
accuracy of the representations and warranties of the Depositor herein at
and as of such Closing Date as if made as of such date, as to the
performance by the Depositor of all of its obligations hereunder to be
performed at or prior to such Closing Date, and as to such other matters
as the Representative may reasonably request;
(k) The Servicer shall have furnished or caused to be furnished to
the Representative on the Closing Date a certificate of officers of such
Servicer in form and substance reasonably satisfactory to the
Representative;
(l) The Financial Guaranty Insurance Policy shall have been duly
executed and issued at or prior to the Closing Date and shall conform in
all material respects to the description thereof in the Prospectus
Supplement.
(m) The Representative shall have received, on the Closing Date, an
opinion of counsel to Financial Security Assurance Inc. (the "Certificate
Insurer"), dated the Closing Date, in form and substance satisfactory to
the Representative and counsel for the Underwriters and containing
opinions as to such matters as the Representative may reasonably request.
(n) On or prior to the Closing Date there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change in rating
the direction of which has not been indicated, in the rating accorded the
Certificate Insurer's claims paying ability by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
the 1933 Act.
(o) There has not occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, since March 31, 2000, of the
Certificate Insurer, that is in the Representative's judgment material
and adverse and that makes it in the Representative's judgment
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
(p) The Representative shall have 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 Trustee under the
applicable Pooling and Servicing Agreement, (ii) the annual independent
public accountants' servicing report furnished to the Trustee pursuant to
the applicable Pooling and Servicing Agreement, (iii) each report
regarding the Offered Securities mailed to the holders of such
Securities, and (iv) from time to time, such other information concerning
such Securities as the Representative may reasonably request.
6. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, each Underwriter, as of the date
of the Underwriting Agreement, as follows:
(a) The Registration Statement including a prospectus relating to
the Securities and the offering thereof from time to time in accordance
with Rule 415 under the 1933 Act has been filed with the Commission and
such Registration Statement, as amended to the date of the Underwriting
Agreement, has become effective. No stop order suspending the
effectiveness of such Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission. A prospectus supplement specifically relating to the Offered
Securities will be filed with the Commission pursuant to Rule 424 under
the 1933 Act; provided, however, that a supplement to the Prospectus
prepared pursuant to Section 5(b) hereof shall be deemed to have
supplemented the 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 Mortgage Loan Purchase Agreement and the Pooling 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 Pooling and Servicing Agreement, 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 Pooling and
Servicing Agreement.
(g) The execution and delivery by the Depositor of these Standard
Provisions, the Underwriting Agreement, the Mortgage Loan Purchase
Agreement and the Pooling 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 Mortgage Loan Purchase Agreement and the Pooling 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 Pooling and Servicing
Agreement, 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
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement
will have been, duly authorized, executed and delivered by the Depositor.
(i) At the Closing Date, each of the Underwriting Agreement, the
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement
will constitute a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor, in accordance with its terms, subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the
rights of creditors generally, and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
(j) No filing or registration with, notice to, or consent, approval,
non-disapproval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by the
Depositor of the transactions contemplated by the Underwriting Agreement,
the Mortgage Loan Purchase Agreement or the Pooling and Servicing
Agreement, except such as have been obtained and except such as may be
required under the 1933 Act, the rules and regulations thereunder, or
state securities or "Blue Sky" laws, in connection with the purchase and
distribution of the Offered Securities by the Underwriters.
(k) The Depositor owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease, own or license, as the case may be,
and to operate, its properties and to carry on its business as presently
conducted and has received no notice of proceedings relating to the
revocation of any such license, permit, consent, order or approval, which
singly or in the aggregate, if the subject 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 Mortgage
Loan Purchase Agreement and the Pooling and Servicing Agreement and all
such Mortgage Loans in the aggregate will meet the criteria for selection
described in the Prospectus, and at the Closing Date or any Subsequent
Transfer Date, as the case may be, the representations and warranties
made by the Depositor both the Mortgage Loan Purchase Agreement and the
Pooling and Servicing Agreement will be true and correct as of such date.
(o) At the time of execution and delivery of Mortgage Loan Purchase
Agreement and the Pooling and Servicing Agreement and on any Subsequent
Transfer Date, as the case may be, the Depositor will have good and
marketable title to the Mortgage Loans being transferred to the Trust
pursuant to the Pooling and Servicing Agreement, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"), and will not have assigned to
any person (other than the Trust and the Trustee) any of its right, title
or interest in such Mortgage Loans or in such Mortgage Loan Purchase
Agreement or such Pooling and Servicing Agreement or the Offered
Securities being issued pursuant thereto, the Depositor will have the
power and authority to transfer such Mortgage Loans to the Trust and to
transfer the Offered Securities to each of the Underwriters, and upon
execution and delivery to the Trust of the Pooling and Servicing
Agreement and delivery to each of the Underwriters of the Offered
Securities, and on any Subsequent Transfer Date, as the case may be, the
Trust 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 Pooling and Servicing Agreement and the
Offered Securities have been or will be paid at or prior to the Closing
Date.
7. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless each
Underwriter (including Prudential Securities Incorporated acting in its
capacity as Representative and as one of the Underwriters), and each person,
if any, who controls any Underwriter within the meaning of the 1933 Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Depositor will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, any preliminary Prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with (1) written
information furnished to the Depositor by any Underwriter through the
Representative specifically for use therein or (2) information regarding the
Mortgage Loans except to the extent that the Depositor has been indemnified by
the Servicer. This indemnity agreement will be in addition to any liability
which the Depositor may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Depositor,
each of the Depositor's directors, each of the Depositor's officers who signed
the Registration Statement and each person, if any, who controls the
Depositor, within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities to which the Depositor, or any such director, officer
or controlling person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or any other prospectus relating to the Offered Securities, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statements or alleged untrue statements or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by any Underwriter through the
Representative specifically for use therein; and each Underwriter will
reimburse any legal or other expenses reasonably incurred by the Depositor or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have. The Depositor acknowledges that the statements
set forth under the caption "UNDERWRITING" in the Prospectus Supplement
constitute the only information furnished to the Depositor by or on behalf of
any Underwriter for use in the Registration Statement, any preliminary
Prospectus or the Prospectus, and each of the several Underwriters represents
and warrants that such statements are correct as to it.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the preceding
parts of this Section 7 is for any reason held to be unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect
thereof); provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. In determining the amount of contribution to
which the respective parties are entitled, there shall be considered the
relative benefits received by the Depositor on the one hand, and the
Underwriters on the other, from the offering of the Offered Securities (taking
into account the portion of the proceeds of the offering realized by each),
the Depositor's and the Underwriters' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Depositor and the Underwriters agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose). No Underwriter or person controlling such Underwriter shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total underwriting fee of the Offered Securities purchased by such Underwriter
under the Underwriting Agreement, less the aggregate amount of any damages
which such Underwriter and its controlling persons have otherwise been
required to pay in respect of the same or any substantially similar claim. The
Underwriters' obligation to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint. For purposes of this
Section 7, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Depositor, each officer of the
Depositor who signed the Registration Statement, and each person, if any, who
controls the Depositor within the meaning of Section 15 of the 1933 Act, shall
have the same rights to contribution as the Depositor.
(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 Certificate Insurer, the Seller, the Servicer, the
Trust, 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.
(a) The Underwriting Agreement may be terminated by the Depositor by
notice to the Representative in the event that a stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings for that purpose shall have been instituted or threatened.
(b) The Underwriting Agreement may be terminated by the
Representative by notice to the Depositor in the event that the Depositor
shall have failed, refused or been unable to perform all obligations and
satisfy all conditions to be performed or satisfied hereunder by the Depositor
at or prior to the Closing Date.
(c) Termination of the Underwriting Agreement pursuant to this
Section 9 shall be without liability of any party to any other party other
than as provided in Sections 7 and 11 hereof.
10. Default of Underwriters. If any Underwriter or Underwriters
defaults or default in their obligation to purchase Offered Securities which
it or they have agreed to purchase under the Underwriting Agreement and the
aggregate principal amount of the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent (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, One New York
Plaza, New York, New York 10292, 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:
Exhibit A
Opinions of Brown & Wood LLP,
special counsel for the Depositor
--------------------------------------
(1) Each of the Mortgage Loan Purchase Agreement, the Pooling and
Servicing Agreement, the Underwriting Agreement and the Standard Provisions
(collectively, with 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 Certificates, assuming the due execution and due
authentication by the Trustee and payment therefor pursuant to the
Underwriting Agreement, are validly issued and outstanding and are entitled to
the benefits of the Pooling and Servicing Agreement.
(3) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required
under federal laws or the laws of the State of New York for the execution,
delivery and performance of the Documents or the offer, issuance, sale or
delivery of the Certificates or the consummation of any other transaction
contemplated thereby by the Depositor, except such which have been obtained.
(4) The Registration Statement and the Prospectus (other than the
financial and statistical data included therein, as to which we are not called
upon to express any opinion), at the time the Registration Statement became
effective, as of the date of execution of the Underwriting Agreement and as of
the date hereof comply as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations thereunder, and the
Exchange Act and the rules and regulations thereunder, and we do not know of
any amendment to the Registration Statement required to be filed, or of any
contracts, indentures or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus, which has not been filed or
described as required.
(5) The registration of the Trust Estate created by the Pooling and
Servicing Agreement 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 CERTIFICATES," to the extent such statements
purport to summarize certain provisions of the Certificates or of the Pooling
and Servicing Agreement or of the Mortgage Loan Purchase 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 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 Certificates, except
as otherwise contemplated by the Pooling and Servicing Agreement.
(5) The endorsement and delivery of each Mortgage Note, and the
preparation, delivery and recording of an Assignment of Mortgage with respect
to each Mortgage is sufficient fully to transfer to the 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 Trustee
---------------------------
(1) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America and has the power and authority to enter into and to take all actions
required of it under the Pooling and Servicing Agreement.
(2) Each of the Documents to which the Trustee is a party have been
duly authorized, executed and delivered by the Trustee and each such Document
constitutes the legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except as
enforceability thereof may be limited by (A) bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, as such laws would apply in the event of a bankruptcy,
insolvency or reorganization or similar occurrence affecting the Trustee, and
(B) general principles of equity regardless of whether such enforcement is
sought in a proceeding at law or in equity.
(3) No consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part of the
Trustee in connection with its execution and delivery of each of the Documents
to which it is a party or the performance of its obligations thereunder.
(4) The Certificates have been duly executed, authenticated and
delivered by the Trustee.
(5) The execution and delivery of, and performance by the Trustee of
its obligations under, 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 Trustee, or the charter or bylaws of the Trustee, or to the best
knowledge of such counsel, any governmental authority having jurisdiction over
the Trustee or the terms of any indenture or other agreement or instrument to
which the Trustee is a party or by which it is bound.
