EXHIBIT 99.2
EXECUTION COPY
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-C1
UNDERWRITING AGREEMENT
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March 31, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
North Tower
World Financial Center
New York, New York 10281
XXXXXXX XXXXX XXXXXX
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Prudential Securities Secured Financing Corporation, a Delaware corporation
(the "Company"), intends to create a commercial mortgage trust (the "Trust") in
order to issue Commercial Mortgage Pass-Through Certificates, Series 2001-C1
(the "Certificates"), in certain classes (each, a "Class") to be designated in
the Prospectus Supplement (as defined below). The Company further proposes to
sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB"; and together with Xxxxxxx Xxxxx, the
"Underwriters") the Classes of the Certificates having the characteristics
described on Schedule I (the "Underwritten Certificates").
The Certificates will represent in the aggregate the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting of a segregated
pool (the "Mortgage Pool") of mortgage loans (the "Mortgage Loans") that will
have an approximate aggregate principal balance of $914,474,000 on or about May
1, 2001 (the "Cut-Off Date") secured by first liens on the borrowers' fee or
leasehold interests in commercial and multifamily properties (the "Mortgaged
Properties"). The Certificates will be issued on or about May 30, 2001 (the
"Closing Date") pursuant to a pooling and servicing agreement (the "Pooling and
Servicing Agreement") among the Company, Prudential Asset Resources, Inc., as
master servicer (in such capacity, the "Master Servicer"), Lennar Partners Inc.
or another specified party, as special servicer of the Mortgage Loans other than
the Mortgage Loan in the approximate principal balance of $155,000,000 known as
the "RREEF Loan," a portion of which will be included in
the Mortgage Pool (the "Special Servicer"), Prudential Asset Resources, Inc., as
special servicer of the RREEF Loan (in such capacity the "RREEF Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent.
The Mortgage Loans will be acquired by the Company from Prudential Mortgage
Capital Funding, LLC (the "Mortgage Loan Seller") on or prior to the Closing
Date pursuant to a mortgage loan purchase agreement (the "Mortgage Loan Purchase
Agreement") between the Mortgage Loan Seller and the Company. The Company, the
Mortgage Loan Seller, the Master Servicer and the RREEF Special Servicer are
affiliates of Prudential Mortgage Capital Company, LLC ("Prudential").
The Underwritten Certificates and the Mortgage Pool are described more
fully in Schedule I, as may be modified by mutual agreement and described in the
Prospectus Supplement to be furnished to you by the Company.
1. Representations and Warranties. A. The Company represents and warrants
to, and agrees with, each Underwriter, as of the date hereof and as of the date
the Underwritten Certificates are initially priced (the "Pricing Date"), that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-42858) on Form S-3 for the
registration of Commercial Mortgage Pass-Through Certificates, issuable in
series, including the Underwritten Certificates, under the Securities Act of
1933, as amended (the "1933 Act"), which registration statement has become
effective. The Underwritten Certificates meet the requirements for use of Form
S-3 under the 1933 Act, and such registration statement, as amended at the date
hereof, meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act
and complies in all other material respects with the 1933 Act and the rules and
regulations thereunder. The Company proposes to file with the Commission, with
your consent, pursuant to Rule 424 under the 1933 Act, a supplement (the
"Prospectus Supplement") to the Basic Prospectus (as defined in Schedule I)
relating to the Underwritten Certificates and the method of distribution
thereof, and shall advise you of all further information (financial and other)
with respect to the Underwritten Certificates and the Mortgage Pool to be set
forth therein. Such registration statement, including all exhibits thereto, is
referred to herein as the "Registration Statement"; and the Basic Prospectus and
the Prospectus Supplement, together with any amendment thereof or supplement
thereto authorized by the Company prior to the Closing Date for use in
connection with the offering of the Underwritten Certificates, are hereinafter
called the "Prospectus". Any preliminary form of the Prospectus Supplement that
will be filed pursuant to Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement". If so stated in the Prospectus Supplement, the Company
shall file with the Commission within fifteen days of the issuance of the
Underwritten Certificates a report on Form 8-K ("Form 8-K") setting forth
specific information concerning the Mortgage Pool and the Underwritten
Certificates to the extent that such information is not set forth in the
Prospectus Supplement.
(b) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the
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Closing Date, (i) the Registration Statement, as amended as of any such time,
and the Prospectus, as amended or supplemented as of any such time, complies and
will comply in all material respects with the applicable requirements of the
1933 Act and the rules and regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not contain and will not contain
any untrue statement of a material fact and does not omit and will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Prospectus, as amended
or supplemented as of any such time, does not contain and will not contain any
untrue statement of a material fact and does not omit and will not omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i)
statements contained in or omitted from the Registration Statement or the
Prospectus or any amendment or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of the Underwriters specifically for use in the Registration Statement and the
Prospectus (such information being identified in Section 8(b) hereof); (ii) the
information contained in or omitted from the Registration Statement or the
Prospectus, or any amendment or supplement thereto, in reliance upon and
conformity with (A) written information provided by the Mortgage Loan Seller
relating to the Mortgage Loans, the Mortgaged Properties, the related loan
documents and the obligors thereunder, and the Mortgage Loan Seller ("Mortgage
Loan Seller Information"), or (B) the representations and warranties of the
Mortgage Loan Seller set forth in or made pursuant to the Mortgage Loan Purchase
Agreement; (iii) the information contained in or omitted from any Computational
Materials or ABS Term Sheets (as defined in Section 4) that have been filed as
part of the Registration Statement, to the extent it consists of, is based on or
relates to Mortgage Loan Seller Information; or (iv) any other information
contained in or omitted from any Computational Materials or ABS Term Sheets that
have not been approved in writing by the Company.
(c) The Company has been duly incorporated, is validly existing and is in
good standing under the laws of the jurisdiction of its organization, with power
and authority to own, lease or operate its properties and to conduct its
business as now conducted by it and to enter into and perform its obligations
under this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, to the extent that the failure to be so
qualified and in good standing would be material and adverse to the Trust or any
Mortgage Loan or would have a material and adverse effect on the performance of
the Company's obligations under this Agreement, the Pooling and Servicing
Agreement or the Mortgage Loan Purchase Agreement.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the Closing Date,
there has not and will not have been (i) any request by the Commission for any
further amendment to the Registration Statement or the Prospectus or for any
additional information relating to the Underwritten Certificates, (ii) any
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threat
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of any proceeding for that purpose known to the Company or (iii) any
notification with respect to the suspension of the qualification of the
Underwritten Certificates for sale in any jurisdiction or any initiation or
threat of any proceeding for such purpose known to the Company.
(e) This Agreement has been, and as of the Closing Date, each of the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement will
be, duly authorized, executed and delivered by the Company and this Agreement
constitutes, and as of the Closing Date each of the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement will constitute, legal, valid
and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement, the Pooling and Servicing
Agreement or the Mortgage Loan Purchase Agreement that purport or are construed
to provide indemnification from securities law liabilities.
(f) As of the Closing Date, the Underwritten Certificates, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreement will conform in all
material respects to the respective descriptions thereof contained in the
Prospectus. As of the Closing Date, the Underwritten Certificates will be duly
and validly authorized and, when executed, authenticated and delivered in
accordance with the Pooling and Servicing Agreement to you against payment
therefor as provided herein, will be duly and validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreement will be true and correct in all material respects.
(h) The Company is not in violation of its organizational documents or in
default under any agreement, indenture or instrument the effect of which
violation or default would be material and adverse to the Company or which
violation or default would have a material adverse affect on the performance of
its obligations under this Agreement, the Pooling and Servicing Agreement or the
Mortgage Loan Purchase Agreement. Neither the issuance and sale of the
Underwritten Certificates, nor the execution and delivery by the Company of this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreement, nor the consummation by the Company of any of the transactions herein
or therein contemplated, nor compliance by the Company with the provisions
hereof or thereof, did, does or will conflict with or result in a breach of any
term or provision of the organizational documents of the Company or conflict
with, result in a breach, violation or acceleration of, or constitute a default
or result in the creation or imposition of a lien on any of its assets under,
the terms of any indenture or other agreement or instrument to which the Company
is a party or by which it or any material asset is bound, or any statute, order
or regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company.
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(i) There is no action, suit or proceeding against the Company pending, or,
to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreement or the Underwritten Certificates, (ii) seeking to prevent the issuance
of the Underwritten Certificates or the consummation of any of the transactions
contemplated by this Agreement, (iii) that might materially and adversely affect
the performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreement or the Underwritten Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Underwritten Certificates to be described in the Prospectus.
(j) There are no contracts, indentures or other documents of a character
required by the 1933 Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering or sale of the
Underwritten Certificates pursuant to this Agreement, except such as have been,
or as of the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the purchase
and offer and sale of the Underwritten Certificates by the Underwriter and any
recordation of the respective assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(m) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the delivery
and sale of the Underwritten Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom) have
been or will be paid at or prior to the Closing Date.
(n) Neither the Company nor the Trust is, and neither the sale of the
Underwritten Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust pursuant to the Pooling and Servicing Agreement will
cause the Company or the Trust to be, an "investment company" or under the
control of an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(o) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Company will report the transfer of the Mortgage Loans
to the Trustee in exchange for the Certificates and will report the sale of the
Underwritten Certificates to the
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Underwriters pursuant to this Agreement as a sale of the Company's interests in
the Mortgage Loans evidenced by the Underwritten Certificates. The consideration
received by the Company upon the sale of the Underwritten Certificates to the
Underwriters will constitute at least reasonably equivalent value and fair
consideration for the Underwritten Certificates. The Company will be solvent at
all relevant times prior to, and will not be rendered insolvent by, the sale of
the Underwritten Certificates to the Underwriters. In addition, the Company will
be solvent at all relevant times prior to, and will not be rendered insolvent
by, the transfer of the Mortgage Loans to the Trustee on behalf of the Trust.
The Company is not selling the Underwritten Certificates to the Underwriters and
will not transfer the Mortgage Loans to the Trustee on behalf of the Trust with
any intent to hinder, delay or defraud any of the creditors of the Company.
(p) At the Closing Date, the respective Classes of Underwritten
Certificates shall have been assigned ratings no lower than those to be set
forth in Schedule I, by the nationally recognized statistical rating
organizations to be identified in Schedule I (each a "Rating Agency" and
together, the "Rating Agencies").
(q) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
(r) The accountants who delivered the "agreed-upon procedures letters" to
the Underwriter pursuant to Section 6(h) hereof are independent certified public
accountants with respect to the Company and its affiliates within the meaning of
Regulation S-X under the 1933 Act.
(s) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have such title to each Mortgage Loan as was conveyed
to it by the Mortgage Loan Seller, free and clear of any pledge, mortgage, lien,
security interest or other encumbrance created by or through the Company. At the
Closing Date, the Company will have full power and authority to sell and deliver
the Mortgage Loans to the Trustee under the Pooling and Servicing Agreement and
will have duly authorized such assignment and delivery to the Trustee by all
necessary actions.
(t) At the Closing Date, the Company's interest in the Mortgage Loans will
have been duly and validly assigned and delivered by the Company to the Trustee
under the Pooling and Servicing Agreement.
X. Xxxxxxxxxx represents and warrants to, and agrees with, each
Underwriter, as of the date hereof and as of the Pricing Date, that:
(a) Prudential has been duly organized, is validly existing and is in good
standing under the laws of the jurisdiction of its organization and possesses
all requisite authority, power, licenses, permits and franchises to carry on its
business as currently conducted by it and to execute, deliver and comply with
its obligations under the terms of this Agreement.
(b) This Agreement has been duly and validly authorized, executed and
delivered by Prudential and, assuming due authorization, execution and delivery
hereof by the other parties hereto, constitutes a legal, valid and binding
obligation of Prudential, enforceable
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against Prudential in accordance with its terms, except as such enforcement may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights in general, (ii) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement that
purport or are construed to provide indemnification from liabilities under
applicable securities laws.
(c) The execution and delivery of this Agreement by Prudential and
Prudential's performance and compliance with the terms of this Agreement will
not (i) violate Prudential's organizational documents, (ii) violate any law or
regulation or any administrative decree or order to which it is subject or (iii)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any contract,
agreement or other instrument to which Prudential is a party or by which
Prudential is bound.
(d) Prudential is not a party to or bound by any agreement or instrument or
subject to any organizational documents or any other organizational restriction
or any judgment, order, writ, injunction, decree, law or regulation that would
materially and adversely affect the ability of Prudential to perform its
obligations under this Agreement, or that requires the consent of any third
person to the execution of this Agreement, or the performance by Prudential of
its obligations under this Agreement (except to the extent such consent has been
obtained or will be obtained prior to the Closing Date).
(e) No consent, approval, authorization or order of, any court or
governmental agency or body, or of any person is required for the execution,
delivery and performance by Prudential of or compliance by Prudential with this
Agreement or the consummation of the transactions contemplated by this Agreement
and the Prospectus (except as have previously been obtained or will be obtained
prior to the Closing Date).
(f) No litigation is pending or, to the best of Prudential's knowledge,
threatened against Prudential that would prohibit its entering into this
Agreement, or materially and adversely affect the performance by Prudential of
its obligations under this Agreement.
(g) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of Prudential are pending or contemplated.
C. Each Underwriter, severally and not jointly, represents and warrants to
the Company with respect to itself that, as of the date hereof and as of the
Closing Date, (i) the Underwriter has complied in all material respects with all
of its obligations under Section 4 hereof and (ii) with respect to all
Computational Materials and ABS Term Sheets, if any, provided by such
Underwriter to the Company pursuant to Section 4(b)(iv) hereof, such
Computational Materials and ABS Term Sheets are accurate in all material
respects (taking into account the assumptions explicitly set forth or otherwise
referred to in the Computational Materials, the ABS Term Sheets, the Prospectus
Supplement or the Preliminary Prospectus Supplement, and provided that the
underlying data regarding the Mortgage Loans and the related Mortgagors and
Mortgaged Properties provided to such Underwriter by the Mortgage Loan
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Seller and the Preliminary Prospectus Supplement and Prospectus Supplement are
accurate and complete in all material respects) and constitute a complete set of
all Computational Materials and ABS Term Sheets that are required to be filed
with the Commission pursuant to the No-Action Letters (as defined herein).
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the percentage of each Class of
Underwritten Certificates set forth opposite each such Underwriter's name and at
the applicable purchase prices set forth in Schedule I under the terms and as
described in Schedule I.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made in the manner, at the location(s), on the Closing
Date at the time to be specified in Schedule I, which date and time may be
changed by agreement between you and the Company. Delivery of the Underwritten
Certificates shall be made either directly to you or through the facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I, for the
account of the each Underwriter against payment by such Underwriter of the
purchase price therefor in immediately available funds wired to such bank as may
be designated by the Company, or such other manner of payment as may be agreed
upon by the Company and you. Any Class of Underwritten Certificates to be
delivered through the facilities of DTC shall be represented by one or more
global Certificates registered in the name of Cede & Co., as nominee of DTC,
which global Certificate(s) shall be placed in the custody of DTC not later than
1:00 p.m. (New York City time) on the Closing Date pursuant to a custodial
arrangement to be entered into between the Trustee or its agent and DTC. Unless
delivered through the facilities of DTC, the Underwritten Certificates shall be
in fully registered certificated form, in such denominations and registered in
such names as you may have requested in writing not less than one full business
day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including the
global certificates representing the Underwritten Certificates to be delivered
through the facilities of DTC, available for inspection, checking and, if
applicable, packaging by you in New York, New York, not later than the close of
business (New York City time) on the business day preceding the Closing Date.
References herein, including, without limitation, in Schedule I and Exhibit
A, to actions taken or to be taken following the Closing Date with respect to
any Underwritten Certificates that are to be delivered through the facilities of
DTC shall include, if the context so permits, actions taken or to be taken with
respect to the interests in such Underwritten Certificates as reflected on the
books and records of DTC.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without limitation,
in and from the State of New York, as shall be set forth in the Prospectus
Supplement. It is further understood that the Company, in reliance upon an
exemption from the Attorney General of the State of New York to
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be granted pursuant to Policy Statement 104 and 105, has not and will not file
the offering pursuant to Section 352-e of the General Business Law of the State
of New York with respect to the Underwritten Certificates which are not
"mortgage related securities" as defined in the Securities Exchange Act of 1934,
as amended (the "1934 Act"). Accordingly, each Underwriter covenants and agrees
with the Company that sales of such Underwritten Certificates made by such
Underwriter in the State of New York will be made only to institutional
investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide to prospective investors
certain Computational Materials and ABS Term Sheets in connection with its
offering of the Certificates. Each Underwriter, severally and not jointly,
covenants with the Company that:
(i) Such Underwriter shall comply with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and
Xxxxxx Structured Asset Corporation, as made applicable to other issuers
and underwriters by the Commission in response to the request of the Public
Securities Association, dated May 25, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and the requirements of the no-action letter, dated February 17,
1995, issued by the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action
Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only
those Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of such Underwriter. For
purposes hereof, "ABS Term Sheets shall have the collective meanings given
to the terms "ABS Term Sheets," "Structural Term Sheets" and "Collateral
Term Sheet" in the PSA Letter but shall include only those ABS Term Sheets,
Structural Term Sheets or Collateral Term Sheets that have been prepared
for or delivered to prospective investors by or at the direction of such
Underwriter.
(iii) All Computational Materials and ABS Term Sheets provided to
prospective investors shall bear a legend in a form previously approved by
the Company or its counsel.
(iv) Such Underwriter shall not distribute any such Computational
Materials or ABS Term Sheets unless the forms and methodology thereof are
in accordance with this Agreement. Such Underwriter shall provide to the
Company, for filing on Form 8-K as provided in Section 5(g) hereof, copies
(in such format as required by the Company) of all Computational Materials
and ABS Term Sheets. Such Underwriter may provide copies of the foregoing
in a consolidated or aggregated form including all information required to
be filed. All Computational Materials and ABS Term Sheets described in this
subsection (iv) must be provided to the Company (a) in paper or electronic
format suitable for filing with the Commission and (b) not later than 10:00
a.m. (New York City time) on a business day that is not less than one
business day before filing thereof is required pursuant to the terms of the
No-Action Letters.
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(v) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology
and assumptions as are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials
and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets were based on assumptions with respect to the
Mortgage Pool that differ from the characteristics of the actual Mortgage
Pool in any material respect or on Underwritten Certificate structuring
assumptions (except in the case of Computational Materials when the
different structuring terms were hypothesized and so described) that were
revised in any material respect prior to the printing of the Prospectus,
then to the extent that it has not already done so, such Underwriter shall
immediately inform the Company and, upon the direction of the Company, and
if not corrected by the Prospectus, shall prepare revised Computational
Materials and ABS Term Sheets, as the case may be, based on the final
Mortgage Pool and structuring assumptions, circulate such revised
Computational Materials and ABS Term Sheets to all recipients of the
preliminary versions thereof, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that the Company will file
Computational Materials or ABS Term Sheets that contain a material error
or, when read together with the Prospectus, a material omission, if clearly
marked (A) "superseded by materials dated [specify date]" and accompanied
by corrected Computational Materials or ABS Term Sheets that are marked
"material previously dated [specify date], as corrected", or (B) if the
material error or omission is to be corrected in the Prospectus,
"superseded by materials contained in the Prospectus." If, within the
period during which the Prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 Act, any
Computational Materials or ABS Term Sheets are determined, in the
reasonable judgment of the Company or such Underwriter, to contain a
material error or, when read together with the Prospectus, a material
omission, then (unless the material error or omission was corrected in the
Prospectus) such Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
Computational Materials or ABS Term Sheets to all recipients of the prior
versions thereof, and shall deliver copies of such corrected Computational
Materials or ABS Term Sheets (marked, "as corrected") to the Company for
filing with the Commission in a subsequent Form 8-K submission (subject to
the Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which shall be at
the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as of the
Closing Date, that except for Computational Materials and/or ABS Term
Sheets provided to the Company pursuant to subsection (iv) above, such
Underwriter did not provide any prospective investors with any information
in written or electronic form in connection with the offering of the
Underwritten Certificates that is required to be filed with the Commission
in accordance with the No-Action Letters.
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(viii) In the event of any delay in the delivery by such Underwriter
to the Company of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with subsection (iv) above, the Company shall
have the right to delay the release of the Prospectus to investors or to
such Underwriter, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to comply
with its agreement set forth in Section 5(g) hereof to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets may be distributed by
such Underwriter through electronic means in accordance with SEC Release
No. 33-7233 or other applicable laws or regulations.
(c) Such Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements with
respect to each Class of the Underwritten Certificates to the extent such
information can in the good faith judgment of such Underwriter be determined by
it.
5. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
(a) The Company shall not file any amendment to the Registration Statement,
or any supplement to the Basic Prospectus, relating to or affecting the
Underwritten Certificates, unless the Company has furnished a copy to you for
your review prior to filing, and shall not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence,
the Company shall prepare and cause the Prospectus Supplement to be transmitted
to the Commission for filing pursuant to Rule 424 under the 1933 Act or shall
cause the Prospectus Supplement to be filed with the Commission pursuant to said
Rule 424. The Company promptly shall advise you or counsel for the Underwriters
(i) when the Prospectus Supplement shall have been filed or transmitted to the
Commission for filing pursuant to Rule 424, (ii) when any amendment to the
Registration Statement (other than an amendment filed pursuant to Rule 429 under
the 1933 Act) shall have become effective, (iii) of any request or proposed
request by the Commission to the Company to amend the Registration Statement or
supplement the Prospectus Supplement or for any additional information in
respect of the offering contemplated hereby, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto which shall have become
effective on or prior to the Closing Date or, to the extent known to the
Company, the institution or threatening of any proceeding for that purpose, and
(v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale in any
jurisdiction or the institution or threatening of any proceeding for that
purpose. The Company will use reasonable efforts to prevent the issuance of any
such stop order or suspension and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Certificates 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
-11-
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, or if it shall be necessary to amend or supplement the Prospectus to
comply with the 1933 Act or the rules and regulations thereunder, then promptly
following the Company becoming aware thereof, the Company shall prepare and file
with the Commission, at the expense of the Company, subject to Section 5(a)
above, an amendment or supplement that will correct such statement or omission
or an amendment that will effect such compliance and, if such amendment or
supplement is required to be contained in a post-effective amendment to the
Registration Statement, the Company will use its best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company shall furnish to you and to counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and each amendment thereto which shall become effective on or prior to
the Closing Date, and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the 1933 Act, as many copies of any Preliminary
Prospectus Supplement, the Prospectus Supplement and the Basic Prospectus and
any amendments and supplements thereto as you may reasonably request.
(d) The Company shall furnish such information, execute such instruments
and take such action, if any, as may be required to qualify the Underwritten
Certificates for sale under the laws of such jurisdictions as you may designate
and shall maintain such qualifications in effect for a period of nine months
following the Closing Date; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action that would subject it to general or unlimited
service of process in any jurisdiction where it is not now subject to such
service of process.
(e) The Company shall pay, or cause to be paid, all costs and expenses in
connection with the transactions contemplated in this Agreement and the
Prospectus, including, but not limited to, the fees and disbursements of its
counsel; the costs and expenses of printing (or otherwise reproducing) and
delivering the Pooling and Servicing Agreement and the Underwritten
Certificates; the fees and disbursements of accountants for the Company; the
reasonable out-of-pocket costs and expenses in connection with the qualification
or exemption of the Underwritten Certificates under state securities or "blue
sky" laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any blue
sky survey and in connection with any determination of the eligibility of the
Underwritten Certificates for investment by institutional investors and the
preparation of any legal investment survey; the expenses of printing any such
blue sky survey and legal investment survey; the cost and expenses in connection
with the preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Basic Prospectus, the Preliminary Prospectus
Supplement, if any, and the Prospectus Supplement, the preparation and printing
of this Agreement and the delivery to the Underwriters of such copies of the
Basic Prospectus and each Preliminary Prospectus Supplement, if any, and
Prospectus Supplement as you may reasonably request; the fees of the Rating
Agencies that are rating the Underwritten Certificates; and the reasonable fees
and disbursements of counsel to the Underwriters. Except as provided above or in
Section 7 hereof, the Underwriters shall be responsible for paying all other
costs and expenses incurred by them in connection with the purchase and sale of
the Underwritten Certificates.
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(f) [Reserved]
(g) The Company shall, as to itself, and the Company, or pursuant to the
Pooling and Servicing Agreement, the Trustee, will be required, as to the Trust,
to satisfy and comply with all reporting requirements of the 1934 Act, and the
rules and regulations thereunder. The Company shall also file with the
Commission a report on Form 8-K setting forth all Computational Materials and
ABS Term Sheets provided to the Company by each Underwriter and identified by it
as such within the time period allotted for such filing pursuant to the
No-Action Letters; provided, however, that prior to such filing of the
Computational Materials and ABS Term Sheets by the Company, such Underwriter
must comply with its obligations pursuant to Section 4(b) hereof. The Company
shall file any corrected Computational Materials described in Section 4(b)(vi)
hereof as soon as practicable following receipt thereof. Subject to compliance
by such Underwriter with Section 4(b)(iv) hereof, the Company represents and
warrants that, to the extent required by the No-Action Letters, the Company has
timely filed with the Commission any ABS Term Sheets previously delivered to it
as contemplated by Section 4(b)(iv) hereof.
(h) The Company shall take all reasonable action necessary to enable the
Rating Agencies to provide their respective credit ratings of the Underwritten
Certificates described on Schedule I.
(i) The Company shall use commercially reasonable efforts to execute the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement by May
30, 2001 or such later date as agreed to in writing by the Underwriters.
(j) The Company shall cause the Pooling and Servicing Agreement to provide
that the Underwriters shall be intended third-party beneficiaries of the Pooling
and Servicing Agreement and of the obligations of the parties thereto that are
expressly for the benefit of the Underwriters, with all rights to enforce such
obligations of such parties as if such Underwriters were parties to the Pooling
and Servicing Agreement, and with the right to receive copies of any notices and
consents required to be given to the Rating Agencies or to the registered
holders of the Underwritten Certificates.
6. Conditions to the Obligations of the Underwriters. The obligation of the
Underwriters hereunder to purchase the Underwritten Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company and Prudential contained herein as of the date hereof, as of the date of
the effectiveness of any amendment to the Registration Statement filed prior to
the Closing Date, as of the date the Prospectus Supplement or any supplement
thereto is filed with the Commission and as of the Closing Date, to the accuracy
of the statements of the Company and Prudential made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company
and Prudential of their obligations hereunder and to the following additional
conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn, no proceedings for
that purpose shall have been instituted or, to the Company's knowledge,
threatened and not terminated; and the Prospectus Supplement
-13-
shall have been filed or transmitted for filing with the Commission in
accordance with Rule 424 under the 1933 Act;
(b) You shall have received from Cadwalader, Xxxxxxxxxx & Xxxx, counsel for
the Underwriters, a favorable opinion, dated the Closing Date, as to such
matters regarding the Underwritten Certificates as you may reasonably request;
(c) (i) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the Closing
Date, to the effect that: (1) the representations and warranties of the Company
in this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on the Closing Date; and (2) the
Company has in all material respects complied with all the agreements and
satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date; and
(ii) Prudential shall have delivered to you a certificate of Prudential,
signed by an authorized officer of Prudential and dated the Closing Date, of the
President, a Senior Vice President or a Vice President of Prudential to the
effect that: (1) the representations and warranties of Prudential in this
Agreement are true and correct in all material respects; and (2) Prudential has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(d) You shall have received (i) with respect to the Company, a good
standing certificate of the jurisdiction of its organization and (ii) with
respect to Prudential a good standing certificate from the jurisdiction of its
organization, each dated not earlier than 10 days prior to the Closing Date;
(e) (i) You shall have received from the Secretary or an assistant
secretary of the Company, in his or her individual capacity, a certificate,
dated the Closing Date, to the effect that: (x) each individual who, as an
officer or representative of the Company, signed this Agreement, or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of the Company) has occurred since the date of the good standing
certificate referred to in Section 6(d)(i) above which has affected the good
standing of the Company under the laws of the jurisdiction of its organization.
Such certificate shall be accompanied by true and complete copies (certified as
such by the Secretary or an assistant secretary of the Company) of the
organizational documents of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement; and
(ii) you shall have received from the Secretary or an assistant secretary
of Prudential, in his or her individual capacity, a certificate, dated the
Closing Date, to the effect that: (x) each individual who, as an officer or
representative of Prudential, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with
-14-
the transactions contemplated herein, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of Prudential) has occurred since the date of the good standing
certificate referred to in Section 6(d)(ii) above which has affected the
existence of Prudential under the laws of the jurisdiction of its organization.
Such certificate shall be accompanied by true and complete copies (certified as
such by the Secretary or an assistant secretary of Prudential) of the
organizational documents of Prudential, as in effect on the Closing Date, and of
the resolutions of Prudential and any required shareholder consent relating to
the transactions contemplated in this Agreement;
(f) You shall have received from Sidley & Austin, special counsel for the
Company, and from in-house counsel for the Company and in-house counsel for
Prudential, various favorable opinions, each dated the Closing Date and
reasonably satisfactory in form and substance to you and counsel for the
Underwriters, which opinions shall cover such matters regarding the Company,
Prudential, the Underwritten Certificates, this Agreement and the Pooling and
Servicing Agreement as you may reasonably request. Such counsel shall also
confirm that the Underwriters may rely, on and as of the Closing Date, on any
opinion or opinions of such counsel submitted to any Rating Agency as if
addressed to the Underwriters and dated the Closing Date.
(g) [Reserved]
(h) You shall have received from PricewaterhouseCoopers LLP, certified
public accountants, a letter dated the Closing Date and satisfactory in form and
substance to you and counsel for the Underwriters, to the following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature to be set forth in the Prospectus Supplement under
the captions "Summary of the Prospectus Supplement," "Description of the
Mortgage Pool" and "Yield and Maturity Considerations" (or similar captions
thereto) and on certain annexes and schedules to the Prospectus Supplement
agrees with the data sheet or computer tape prepared by or on behalf of the
Mortgage Loan Seller, unless non-material deviations are otherwise noted in
such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan files
and in such other sources as shall be specified by them, and found such
data and information to be in agreement in all material respects, unless
non-material deviations are otherwise noted in such letter;
-15-
(i) You shall have received written confirmation from the Rating Agencies
that the ratings described on Schedule I have been assigned to the Underwritten
Certificates on or before the Closing Date and that, as of the Closing Date, no
notice has been given of (i) any intended or possible downgrading or (ii) any
review or possible changes in such ratings;
(j) You shall have received true sale opinions in connection with the
transfer of the Mortgage Loans, from the Mortgage Loan Seller to the Company,
and in turn from the Company to the Trustee, dated the Closing Date, in form and
substance reasonably satisfactory to you and counsel for the Underwriters;
(k) The Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreement and other agreements contemplated by those agreements to be in effect
on the Closing Date shall have been entered into in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(l) You shall have received from the Secretary or an assistant secretary of
the Trustee, in his or her individual capacity, a certificate, dated the Closing
Date, to the effect that the information under the heading "The Pooling and
Servicing Agreement--The Initial Trustee" (or similar headings thereto) in the
Prospectus Supplement is true and correct in all material respects;
(m) You shall have received from the Secretary or an assistant secretary of
the Master Servicer, in his or her individual capacity, a certificate, dated the
Closing Date, to the effect that the information relating to the Master Servicer
under the heading "The Pooling and Servicing Agreement--The Initial Master
Servicer and the RREEF Special Servicer" (or similar headings thereto) in the
Prospectus Supplement, is true and correct in all material respects;
(n) You shall have received from the Secretary or an assistant secretary of
the Special Servicer, in his or her individual capacity, a certificate, dated
the Closing Date, to the effect that the information relating to the Special
Servicer under the heading "The Pooling and Servicing Agreement--The Initial
Special Servicer" (or similar headings thereto) in the Prospectus Supplement, is
true and correct in all material respects; and
(o) You shall have received, with respect to each of the Master Servicer,
the RREEF Special Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, a favorable opinion of counsel, dated the Closing Date, addressing: the
valid existence of such party under the laws of its jurisdiction of
organization; the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party; the enforceability of the Pooling and
Servicing Agreement against such party, subject to such limitations as are
reasonably acceptable to you and counsel for the Underwriters, and such other
matters as you and counsel for the Underwriters may reasonably request. Counsel
rendering each such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other documents
furnished by officers and/or authorized representatives of, the parties to the
Pooling and Servicing Agreement and on certificates furnished by public
officials and, further, may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered. Each
such opinion need cover only the laws of the State of New York, the laws of the
-16-
jurisdiction of organization for the party on behalf of which such opinion is
being rendered and the federal law of the United States.
(p) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to you and counsel for the Underwriters, and
you and such counsel shall have received such additional information, legal
opinions, certificates and documents as you or they may have reasonably
requested.
(q) The Mortgage Loan Seller and Prudential shall have entered into an
indemnification agreement with the Company and the Underwriters providing for
indemnification of the Company and the Underwriters for any loss, liability,
claim, damage or expense they may incur in connection with the offering and sale
of the Underwritten Certificates arising out of material misstatements contained
in and material omissions from the Preliminary Prospectus Supplement or
Prospectus Supplement, and if approved by the Mortgage Loan Seller,
Computational Materials, ABS Term Sheets, or marketing materials used in "road
shows," resulting from any breach of certain representations or warranties made
by the Mortgage Loan Seller or any error in the Mortgage Loan Seller Information
provided to the Underwriters, in form and substance reasonably satisfactory to
you and counsel for the Underwriters.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by you. Notice of such cancellation shall be given to
the Company in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the Underwritten
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company or
Prudential to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by the Underwriters, the Company shall
reimburse the Underwriters, upon demand, for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Underwritten Certificates. If the Company shall fail to reimburse the
Underwriters, Prudential shall, upon demand, reimburse the Underwriters to the
same extent required by the Company.
8. Indemnification.
(a) The Company and Prudential, jointly and severally, agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
-17-
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Basic
Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto), any Computational
Materials and ABS Term Sheets approved in writing by the Company, any
marketing materials (in any format) shown or otherwise presented or made
available as part of a "road show" to prospective investors in the
Underwritten Certificates ("Road Show Materials") approved in writing by
the Company or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, other than
misstatements or omissions, or alleged misstatements or omissions, in,
based on or relating to Mortgage Loan Seller Information; provided, that
the foregoing indemnity with respect to the Basic Prospectus or any
Preliminary Prospectus Supplement shall not inure to the benefit of an
Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting claims giving rise to any such losses,
claims, damages, expenses or liabilities purchased Underwritten
Certificates if such untrue statement or omission or alleged untrue
statement or omission made in the Basic Prospectus or any Preliminary
Prospectus Supplement is eliminated or remedied in the Prospectus and, if
required by law, a copy of the Prospectus shall not have been furnished to
such person at or prior to the written confirmation of the sale of such
Underwritten Certificates to such person; and
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission intended to be covered by subsection
(a)(i), if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission intended to be covered by subsection (a)(i), to the extent that
any such expense is not paid under subsection (a)(i) or (a)(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (i) made in
reliance upon and in conformity with written information (as specified in
Section 8(b) below) furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or in the Basic
Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement
(or any amendment or
-18-
supplement thereto) or in any Computational Materials, ABS Term Sheets or Road
Show Materials or (ii) made in Computational Materials, ABS Term Sheets, or Road
Show Materials not approved in writing by the Company.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in (i) the Registration Statement (or any amendment thereto) or
in the Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto), or in any Computational
Materials, ABS Term Sheets, or Road Show Materials in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, such Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto), or in Computational
Materials, ABS Term Sheets or Road Show Materials or (ii) Computational
Materials, ABS Term Sheets or Road Show Materials not approved in writing by the
Company.
It is hereby acknowledged that (i) the statements concerning the
Underwriters to be set forth on the cover of the Prospectus Supplement and (ii)
the statements to be included in the Prospectus Supplement under the caption
"Method of Distribution" (or similar captions thereto) constitute the only
written information furnished to the Company by the Underwriters expressly for
use in the Registration Statement (or any amendment thereto) or in the Basic
Prospectus, the Preliminary Prospectus Supplement or the Prospectus Supplement
(or any amendment or supplement thereto), or any Computational Materials, ABS
Term Sheets or Road Show Materials approved by the Company.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate
-19-
from its or their own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. Unless it shall
assume the defense of any proceeding, an indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but,
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party shall indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement (i) provides for unconditional release of the indemnified party in
connection with all matters relating to the proceeding that have been asserted
against the indemnified party in such proceeding by the other parties to such
settlement and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party,
without the consent of the indemnified party. Notwithstanding the foregoing, the
indemnifying party agrees that it shall be liable, to the full extent it
otherwise would under subsection (a) or (b), as applicable, of this Section 8,
for any settlement of any proceedings effected without its written consent if
(i) at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel for which
the indemnifying party is obligated under subsection (a) or (b), as applicable,
of this Section 8, (ii) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (iii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) The indemnity agreements contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms in whole or in part, the Company and
Prudential (collectively, the "Prudential Parties") and each Underwriter shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Prudential
Parties and such Underwriter, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Prudential Parties
on the one hand and such Underwriter on the other from the offering of the
Underwritten Certificates or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Prudential Parties on the one hand and of such
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Prudential Parties
on the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
-20-
state a material fact relates to information supplied by the Prudential Parties
or by such Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
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; and
provided, further, that, in the case of losses, liabilities, claims or damages
referred to in Section 8(a), in no event shall either Underwriter be obligated
to contribute more than the underwriting discounts and commissions pertaining to
the Underwritten Certificates purchased by it from the Company, less any amount
previously paid by such Underwriter in respect of the subject losses,
liabilities, claims, damages and/or expenses. For purposes of the foregoing, the
benefits received by the Prudential Parties on the one hand and such Underwriter
on the other hand in connection with the offering of the Underwritten
Certificates shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Underwritten Certificates (before
deducting expenses) received by the Company and the total underwriting discount
received by such Underwriter bear to the aggregate initial offering price of the
Underwritten Certificates. For purposes of this Section 9, each person, if any,
who controls such Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, and such Underwriter's directors, shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
(b) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take account of the considerations
referred to in subsection (a) above. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims or damages
referred to in Section 8 hereof or this Section 9 shall be deemed to include any
legal fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim
except where the indemnified party is required to bear such expenses, which
expenses the indemnifying party shall pay as and when incurred, at the request
of the indemnified party, to the extent that it is reasonable to believe that
the indemnifying party will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. The remedies provided for in Section 8
hereof and this Section 9 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or in
equity.
(c) The contribution agreement contained in this Section 9 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
10. [Reserved]
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11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters, or by or on behalf of
the Company, or by or on behalf of any of the controlling persons and officers
and directors referred to in Sections 8 and 9 hereof, and shall survive delivery
of the Underwritten Certificates to the Underwriters.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of Prudential
whether or not arising in the ordinary course of business, or (ii) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus Supplement, any
material adverse change with respect to the Mortgage Pool, or (iii) if there has
occurred any material adverse change in the United States or international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis, in each case the effect of which is such as to make it, in
the reasonable judgment of the Underwriters, after discussions with the Company,
impracticable to market the Underwritten Certificates or to enforce contracts
for the sale of the Underwritten Certificates, or (iv) if trading generally on
the American Stock Exchange or the New York Stock Exchange or on the Nasdaq
National Market has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(v) if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
as provided in Section 12(c) hereof.
(c) The provisions of Section 5(e) regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, North Tower,
World Financial Center, New York, New York 10281, Attention: Xxxx Xxxxxxx, CICG
Debt Capital Markets, and to Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx; notices to Prudential shall
be directed to it at 000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx 0, 0xx Xxxxx, Xxxxxx,
Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxx and notices to the Company shall be
directed to it at Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, New York 10292,
Attention: Clay
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Lebhar; or, in either case, such other address as may hereafter be furnished by
the Underwriter, Prudential or the Company to the other such parties in writing.
14. Parties. This Agreement shall inure to the benefit of and be binding
upon each of the Underwriters, the Company and Prudential and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and Prudential and their respective successors and the
controlling persons and officers and directors referred to in Sections 8 and 9
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
Prudential and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Certificates from the Underwriters shall be deemed to be a successor by reason
merely of such purchase.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company,
Prudential and the Underwriters.
Very truly yours,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ XXXX XXXXXX
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC
By: /s/ XXXXX X. XXXXXX, XX.
---------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Managing Director
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
By: /s/ XXXX X. XXXXXXX
-------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director, Authorized Signatory
XXXXXXX XXXXX XXXXXX INC.
By: /s/ XXXX X. XXXXXXXXXXX
--------------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Managing Director
SCHEDULE I
UNDERWRITING AGREEMENT DATED MARCH 31, 2001:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-42858 filed by the Company on Form S-3 and
previously declared effective. The term "Basic Prospectus" refers to the form of
prospectus in the Registration Statement or such later form as most recently
filed by the Company pursuant to Rule 424(b) under the Securities Act of 1933,
as amended. The term "Prospectus Supplement" refers to the supplement to the
Basic Prospectus relating to the mortgage pass-through certificates being sold
pursuant to the Underwriting Agreement (the "Underwritten Certificates").
MORTGAGE POOL:
Approximately 120 commercial and multifamily mortgage loans, having an aggregate
approximate principal balance, after giving effect to payments of principal due
on or before May 1, 2001 (the "Cut-Off Date"), of $914,474,000. The Mortgage
Loan Seller shall make such representations and warranties in the Mortgage Loan
Purchase Agreement with respect to the Mortgage Pool and the Mortgaged
Properties as are customary for similar transactions and may be required by the
Rating Agencies and the investors in the Certificates not purchased pursuant to
this Agreement.
TITLE, PURCHASE PRICE AND DESCRIPTION OF UNDERWRITTEN CERTIFICATES:
Prudential Securities Secured Financing Corporation, Commercial Mortgage
Pass-Through Certificates Series 2001-C1, Classes A1, A2, B, C, D, E, F, G, IO.
At the option of the Underwriters, the Class IO Certificates may be offered in a
transaction exempt from registration under the 1933 Act pursuant to a private
placement memorandum rather than the Prospectus Supplement, and purchased by the
Underwriters pursuant to a certificate purchase agreement rather than this
Agreement, at the same price and subject to the same conditions described
herein.
ALLOCATION
---------------------------
ANTICIPATED CLOSING
DATE AGGREGATE INTERPOLATED MID
CERTIFICATE MARKET SPREAD
DESIGNATION PRINCIPAL BALANCE RATING (1) PRICE (2)(3) XXXXXXX XXXXX SSB
----------- -------------------- ---------- ----------------- ------------- -----
Class A1 $128,126,000 Aaa/AAA Swaps + 120 bps 50% 50%
Class A2 $595,860,000 Aaa/AAA Swaps + 130 bps 50% 50%
Class B $27,409,000 Aa2/AA Swaps + 170 bps 50% 50%
Class C $38,831,000 A2/A Swaps + 210 bps 50% 50%
Class D $9,136,000 A3/A Swaps + 240 bps 50% 50%
Class E $11,320,000 Baa1/B BB+ Swaps + 300 bps 100% 0%
Class F $15,974,000 Baa2/BBB Swaps + 325 bps 100% 0%
Class G $13,705,000 Baa3/BBB- Swaps + 400 bps 100% 0%
Class IO $914,474,000 Aaa/AAA Treasury + 650 bps 100% 0%
(notional)
---------------
(1) Xxxxx'x Investors Service, Inc. and Fitch, Inc., respectively.
(2) The Interpolated Mid Market Swap Spread shall be determined by using the
midpoint of the bid-ask spreads for the point on the swap curve with a
maturity matching that of each Class designation as shown on Telerate page
19901. There shall be added to the purchase price for each Class of
Underwritten Certificates accrued interest, if any, at the initial
Pass-Through Rate for such Class from May 1, 2001, up to, but not
including, the Closing Date. The aggregate purchase price shall not exceed
100.5% of the principal balance of the Underwritten Certificates (other
than the Class IO Certificates), plus accrued interest.
(3) In the event Underwritten Certificates are sold to investors (regardless of
when settlement is to occur) on or prior to the Closing Date at prices
greater than those listed on this Schedule I (the "Floor Prices"), the
aggregate purchase price of the Underwritten Certificates payable by the
Underwriters shall equal (i) the sum of (a) such higher prices (plus
accrued interest) for Underwritten Certificates sold at a higher price and
(b) the Floor Price (plus accrued interest) for Underwritten Certificates
not sold at a higher price, less (ii) the greater of (a) $1,000,000 and (b)
the difference of (1) 0.25% of the sum of (A) the principal amount of the
Underwritten Certificates (other than the Class IO Certificates) and (B)
the gross proceeds of the sale of the Class IO Certificates, minus (2)
$350,000. The Underwriters agree to use commercially reasonable efforts to
market the Underwritten Certificates, obtain such higher prices and sell
the Underwritten Certificates at such higher prices on or before the
Closing Date.
CLOSING DATE AND LOCATION:
On any date mutually agreed by the Company and the Underwriters, but no later
than May 30, 2001. Closing shall occur at the offices of Sidley & Austin, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; except that delivery of the Underwritten
Certificates shall be made through the facilities of The Depository Trust
Company.
INITIAL PUBLIC OFFERING PRICE:
The Underwritten Certificates will be offered to the public in negotiated
transactions or otherwise at varying prices to be determined at the time of
sale.
EXHIBIT A
---------
(LIST OF DEFINITIONS)
None
