Exhibit 99.3
Receipts on Corporate Securities Trust, Series NSC 1998-1
$80,000,000 Residual Class Certificates
$69,977,735 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 April 13, 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 $80,000,000 in certificate principal
amount of Receipts on Corporate Securities, Series NSC 1998-1,
Residual Class Certificates and an aggregate of $69,977,735
certificate principal amount of Receipts on Corporate Securities,
Series NSC 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 NSC 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
supplemented by the Series NSC 1998-1 Supplement, to be dated as
of April 13, 1998 (together, and as amended from time to time,
the "Trust Agreement"). The property of the Trust will consist
principally of $80,000,000 aggregate principal amount of 7.90%
Debentures due May 15, 2097 (the "Term Assets") issued by Norfolk
Southern Corporation ("NSC") 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 April 13, 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:
Section 1. 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.
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 NSC 1998-1, Residual 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.
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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 certain
"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.
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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
distributed to the public pursuant to Rule 144 under the Act.
Underwritten Offering: An offering in which Certificates
are sold to an underwriter for reoffering to the public.
Section 2. Registered Exchange Offer.
(a) 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 NSC 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.
(b) 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
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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.
(c) 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.
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Section 3. Shelf Registration.
(a) Shelf Registration. Unless the credit rating assigned
to NSC 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 any of 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 determine that they are not
required to file the Exchange Offer Registration Statement
pursuant to clause (i) above, or 60 days after the date on which
the Company receive 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 become 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.
(b) 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.
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Section 4. Registration Procedures.
(a) 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:
(i) 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 for such Initial Certificates.
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.
(ii) 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 NSC, (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 & Xxxxxxxx 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
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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 any of the Company or an Affiliate thereof.
(iii) 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.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company shall comply with all
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.
(c) 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:
(i) 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
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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);
(ii) 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;
(iii) 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;
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(iv) 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;
(v) 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;
(vi) 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;
(vii) 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);
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(viii) 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;
(ix) 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:
(A) 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:
(1) 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 paragraphs (g) and (q)
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
(2) 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, and, 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
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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
(B) 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
(C) 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;
(x) 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
12
disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable
Registration Statement; provided, however, that none of the
Company shall 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;
(xi) 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;
(xii) 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;
(xiii) 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 all Exchange Certificates have the same CUSIP
number;
(xiv) 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;
(xv) 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
13
(xvi) 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.
(d) 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)(xv), 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.
Section 5. 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.
14
Section 6. Indemnification. (a) 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 the 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
15
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.
(b) 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.
(c) 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
16
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.
(e) 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.
Section 7. 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.
Section 8. 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
17
aggregate principal amount of the Transfer Restricted Securities
included in such offering. Such investment bankers and managers
are referred to herein as the "underwriters."
Section 9. Miscellaneous.
(a) 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.
(b) 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:
(i) if to a Holder, at the address set forth on the records
of the Trustee under the Trust Agreement; and
(ii) if to the Company:
Prudential Securities Structured Assets, Inc.
One New York Plaza
New York, New York 10292
Attention: Xxxxxx Xxxxxxx
and Xxxxxxxx Xxxx
(i) if to the Initial Purchaser:
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Transactions Group
18
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.
(c) 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.
(d) 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.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
19
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
PRUDENTIAL SECURITIES STRUCTURED
ASSETS, INC.
By /s/ X. Xxxxxxxxxxx Xxxxx
------------------------
Name: X. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President
PRUDENTIAL SECURITIES INCORPORATED
By /s/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
20
