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EXHIBIT 1.1
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EXECUTION
ABFS MORTGAGE LOAN TRUST 2000-3
MORTGAGE LOAN BACKED NOTES
SERIES 2000-3
UNDERWRITING AGREEMENT
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UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza
New York, New York 10292
September 8 2000
Ladies and Gentlemen:
Prudential Securities Secured Financing Corporation (the
"Depositor") proposes, subject to the terms and conditions stated herein and in
the attached Underwriting Agreement Standard Provisions, dated September 8, 2000
(the "Standard Provisions"), between the Depositor and Prudential Securities
Incorporated, to issue and sell to you (the "Underwriter") the Securities
specified in Schedule I hereto (the "Offered Securities"). The Depositor agrees
that each of the provisions of the Standard Provisions is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Underwriting
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Underwriting
Agreement. Each reference to the "Representative" herein and in the provisions
of the Standard Provisions so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Standard
Provisions are used herein as therein defined. The Prospectus Supplement and the
accompanying Prospectus relating to the Offered Securities (together, the
"Prospectus") are incorporated by reference herein.
Subject to the terms and conditions set forth herein and in
the Standard Provisions incorporated herein by reference, the Depositor agrees
to issue and sell to the Underwriter, and the Underwriter agrees to purchase
from the Depositor, at the time and place and at the purchase price to the
Underwriter and in the manner set forth in Schedule I hereto, the entire
original principal balance of the Offered Securities.
[Remainder of Page Intentionally Left Blank]
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If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof, and upon acceptance hereof
by you, this letter and such acceptance hereof, including the provisions of the
Standard Provisions incorporated herein by reference, shall constitute a binding
agreement between the Underwriter and the Depositor.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ Evan Mitnick
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Name: Evan Mitnick
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Abner Figueroa
---------------------------------
Name: Abner Figueroa
Title: Vice President
[Signature Page to Underwriting Agreement]
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SCHEDULE I
Title of Offered Securities: ABFS Mortgage Loan Trust 2000-3,
Mortgage Backed Notes, Series 2000-3,
Class A.
Terms of Offered Securities: The Offered Securities shall have the
terms set forth in the Prospectus and
shall conform in all material respects
to the descriptions thereof contained
therein, and shall be issued pursuant to
an Indenture, to be dated as of
September 1, 2000, between the ABFS
Mortgage Loan Trust 2000-3, as issuer,
and The Chase Manhattan Bank, as
indenture trustee.
Purchase Price: The purchase price for the Offered
Securities shall be 99.70% of the
aggregate note principal balance of the
Class A Notes, as of the Closing Date,
plus accrued interest at the rate of
7.61% per annum, on the aggregate note
principal balance of the Class A Notes
from, and including September 1, 2000
to, but not including the Closing Date.
Specified funds for payment
of Purchase Price: Federal Funds (immediately available
funds).
Required Ratings: Aaa by Moody's Investors Service, Inc.
AAA by Standard & Poor's Ratings
Services
Closing Date: On or about September 28, 2000 at 10:00
A.M. eastern standard time or at such
other time as the Depositor and the
Underwriter shall agree.
Closing Location: Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, New York
10019-60092.
Name and address of
Representative: Designated Representative: Prudential
Securities Incorporated. One New York
Plaza
Address for Notices, etc.: New York, New York 10292
Attn: Managing Director - Asset
Backed Financed Group
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STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
September 8, 2000
From time to time, Prudential Securities Secured Financing
Corporation, a Delaware corporation (the "Depositor") may enter into one or more
underwriting agreements (each, an "Underwriting Agreement") that provide for the
sale of designated securities to the several underwriters named therein (such
underwriters constituting the "Underwriters" with respect to such Underwriting
Agreement and the securities specified therein). The several underwriters named
in an Underwriting Agreement will be represented by one or more representatives
as named in such Underwriting Agreement (collectively, the "Representative").
The term "Representative" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. The standard provisions set forth
herein (the "Standard Provisions") may be incorporated by reference in any
Underwriting Agreement. These Standard Provisions shall not be construed as an
obligation of the Depositor to sell any securities or as an obligation of any of
the Underwriters to purchase such securities. The obligation of the Depositor to
sell any securities and the obligation of any of the Underwriters to purchase
any of the securities shall be evidenced by the Underwriting Agreement with
respect to the securities specified therein. An Underwriting Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of the communications
transmitted. The obligations of the underwriters under these Standard Provisions
and each Underwriting Agreement shall be several and not joint. Unless otherwise
defined herein, the terms defined in the Underwriting Agreement are used herein
as defined in the Prospectus referred to below.
1. The Offered Securities. The Depositor proposes to sell
pursuant to the applicable Underwriting Agreement to the several Underwriters
named therein business purpose loans and home equity loan backed notes (the
"Securities") representing indebtedness secured primarily by the property of a
trust which consists of a pool of business purpose loans and home equity loans
(the "Mortgage Loans") and certain related property. The Securities will be
issued pursuant to an Indenture (the "Indenture") by and between ABFS Mortgage
Loan Trust 2000-3, as issuer (the "Issuer"), and The Chase Manhattan Bank, as
indenture trustee (the "Indenture Trustee"). The Mortgage Loans will be
purchased by the Depositor pursuant to an Unaffiliated Seller's Agreement (the
"Unaffiliated Seller's Agreement") by and among the Depositor, ABFS 2000-3, Inc.
(the "Unaffiliated Seller"), American Business Credit, Inc. ("ABC"),
HomeAmerican Credit, Inc. d/b/a Upland Mortgage ("Upland") and New Jersey
Mortgage and Investment Corp ("NJMIC" and, collectively with ABC and Upland, the
"Originators"). The Mortgage Loans will be sold by the Depositor to the Issuer
pursuant to the terms of a Sale and Servicing Agreement (the "Sale and Servicing
Agreement") among the Issuer, the Depositor, the Indenture Trustee, The Chase
Manhattan Bank, as collateral agent (the "Collateral Agent"), and ABC, as
servicer (in such capacity, the "Servicer").
The terms and rights of any particular issuance of
Securities shall be as specified in the Underwriting Agreement relating thereto
and in or pursuant to the Indenture identified in such Underwriting Agreement.
The Securities which are the subject of any particular Underwriting Agreement
into which these Standard Provisions are incorporated are herein referred to as
the "Offered Securities."
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The Depositor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-37256), including a prospectus relating to the Securities under the
Securities Act of 1933, as amended (the "1933 Act"). The term "Registration
Statement" means such registration statement as amended to the date of the
Underwriting Agreement. The term "Base Prospectus" means the prospectus included
in the Registration Statement. The term "Prospectus" means the Base Prospectus
together with the prospectus supplement specifically relating to the Offered
Securities, as first filed with the Commission pursuant to Rule 424. The term
"Preliminary Prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities together with the Base Prospectus.
2. Offering by the Underwriters. Upon the execution of the
Underwriting Agreement applicable to any Offered Securities and the
authorization by the Representative of the release of such Offered Securities,
the several Underwriters propose to offer for sale to the public the Offered
Securities at the prices and upon the terms set forth in the Prospectus.
3. Purchase, Sale and Delivery of the Offered Securities.
Unless otherwise specified in the Underwriting Agreement, payment for the
Offered Securities shall be made by certified or official bank check or checks
payable to the order of the Depositor in immediately available or next day
funds, at the time and place set forth in the Underwriting Agreement, upon
delivery to the Representative for the respective accounts of the several
Underwriters of the Offered Securities registered in definitive form and in such
names and in such denominations as the Representative shall request in writing
not less than five full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Offered Securities are
herein referred to as the "Closing Date".
4. Conditions of the Underwriters' Obligations. The
respective obligations of the several Underwriters pursuant to the Underwriting
Agreement shall be subject, in the discretion of the Representative, to the
accuracy in all material respects of the representations and warranties of the
Depositor contained herein as of the date of the Underwriting Agreement and as
of the Closing Date as if made on and as of the Closing Date, to the accuracy in
all material respects of the statements of the officers of the Issuer, the
Depositor and the Servicer made in any certificates pursuant to the provisions
hereof and of the Underwriting Agreement, to the performance by the Depositor of
its covenants and agreements contained herein and to the following additional
conditions precedent:
(a) All actions required to be taken and all filings
required to be made by or on behalf of the Depositor under
the 1933 Act and the Securities Exchange Act of 1934, as
amended (the "1934 Act") prior to the sale of the Offered
Securities shall have been duly taken or made.
(b) (i) No stop order suspending the effectiveness of
the Registration Statement shall be in effect; (ii) no
proceedings for such purpose shall be pending before or
threatened by the Commission, or by any authority
administering any state securities or "Blue Sky" laws;
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(iii) any requests for additional information on the part of
the Commission shall have been complied with to the
Representative's reasonable satisfaction; (iv) since the
respective dates as of which information is given in the
Registration Statement and the Prospectus except as
otherwise stated therein, there shall have been no material
adverse change in the condition, financial or otherwise,
earnings, affairs, regulatory situation or business
prospects of the Depositor; (v) there are no material
actions, suits or proceedings pending before any court or
governmental agency, authority or body or threatened,
affecting the Depositor or the transactions contemplated by
the Underwriting Agreement; (vi) the Depositor is not in
violation of its charter or its by-laws or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be
bound, which violations or defaults separately or in the
aggregate would have a material adverse effect on the
Depositor; and (vii) the Representative shall have received,
on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Depositor, to the
foregoing effect.
(c) Subsequent to the execution of the Underwriting
Agreement, there shall not have occurred any of the
following: (i) if at or prior to the Closing Date, trading
in securities on the New York Stock Exchange shall have been
suspended or any material limitation in trading in
securities generally shall have been established on such
exchange, or a banking moratorium shall have been declared
by New York State or federal authorities; (ii) if at or
prior to the Closing Date, there shall have been an outbreak
or escalation of hostilities between the United States and
any foreign power, or of any other insurrection or armed
conflict involving the United States which results in the
declaration of a national emergency or war, and, in the
reasonable opinion of the Representative, makes it
impracticable or inadvisable to offer or sell the Offered
Securities; or (iii) if at or prior to the Closing Date, a
general moratorium on commercial banking activities in the
State of New York shall have been declared by either federal
or New York State authorities.
(d) The Representative shall have received, on the
Closing Date, a certificate dated the Closing Date and
signed by an executive officer of the Depositor to the
effect that attached thereto is a true and correct copy of
the letter from each nationally recognized statistical
rating organization (as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933
Act) that rated the Offered Securities and confirming that,
unless otherwise specified in the Underwriting Agreement,
the Offered Securities have been rated in the highest rating
categories by each such organization and that each such
rating has not been rescinded since the date of the
applicable letter.
(e) The Representative shall have received, on the
Closing Date, an opinion of Brown & Wood LLP, special
counsel for the Depositor, dated the Closing Date, in form
and substance satisfactory to the Representative and
containing opinions substantially to the effect set forth in
Exhibit A hereto.
(f) The Representative shall have received, on the
Closing Date, an opinion of counsel for the Servicer, the
Unaffiliated Seller and the Originators, dated the Closing
Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters and
containing opinions substantially to the effect set forth in
Exhibit B hereto.
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(g) The Representative shall have received, on the
Closing Date, an opinion of counsel for the Indenture
Trustee, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the
Underwriters and containing opinions substantially to the
effect set forth in Exhibit C hereto.
(h) The Representative shall have received, on the
Closing Date, an opinion of counsel for the Issuer and First
Union Trust Company, National Association, as owner trustee
(the "Owner Trustee"), dated the Closing Date, in form and
substance satisfactory to the Representative and counsel for
the Underwriters and containing opinions substantially to
the effect set forth in Exhibit D hereto.
(i) The Representative shall have received, on the
Closing Date, an opinion of Brown & Wood LLP, special
counsel for the Depositor, dated the Closing Date, with
respect to the incorporation of the Depositor, the validity
of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriters may
reasonably require, and the Depositor shall have furnished
to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(j) The Representative shall have received, on or
prior to the date of first use of the prospectus supplement
relating to the Offered Securities, and on the Closing Date
if requested by the Representative, letters of independent
accountants of the Depositor in the form and reflecting the
performance of the procedures previously requested by the
Representative.
(k) The Depositor shall have furnished or caused to
be furnished to the Representative on the Closing Date a
certificate of an executive officer of the Depositor
satisfactory to the Representative as to the accuracy of the
representations and warranties of the Depositor herein at
and as of such Closing Date as if made as of such date, as
to the performance by the Depositor of all of its
obligations hereunder to be performed at or prior to such
Closing Date, and as to such other matters as the
Representative may reasonably request;
(l) The Servicer shall have furnished or caused to be
furnished to the Representative on the Closing Date a
certificate of officers of such Servicer in form and
substance reasonably satisfactory to the Representative;
(m) The Note Insurance Policy shall have been duly
executed and issued at or prior to the Closing Date and
shall conform in all material respects to the description
thereof in the Prospectus Supplement.
(n) The Representative shall have received, on the
Closing Date, an opinion of counsel to Ambac Assurance
Corporation (the "Note Insurer"), dated the Closing Date, in
form and substance satisfactory to the Representative and
counsel for the Underwriters and containing opinions as to
such matters as the Representative may reasonably request.
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(o) On or prior to the Closing Date there shall not
have occurred any downgrading, nor shall any notice have
been given of (i) any intended or potential downgrading or
(ii) any review or possible change in rating the direction
of which has not been indicated, in the rating accorded the
Note Insurer's claims paying ability by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of the 1933 Act.
(p) There has not occurred any change, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, since June 30, 2000, of the Note
Insurer, that is in the Representative's judgment material
and adverse and that makes it in the Representative's
judgment impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
(q) The Representative shall have been furnished
such further information, certificates, documents and
opinions as the Representative may reasonably request.
5. Covenants of the Depositor. In further consideration of
the agreements of the Underwriters contained in the Underwriting Agreement, the
Depositor covenants as follows:
(a) To furnish the Representative, without charge,
copies of the Registration Statement and any amendments
thereto including exhibits and as many copies of the
Prospectus and any supplements and amendments thereto as the
Representative may from time to time reasonably request.
(b) Immediately following the execution of the
Underwriting Agreement, the Depositor will prepare a
prospectus supplement setting forth the principal amount,
notional amount or stated amount, as applicable, of Offered
Securities covered thereby, the price at which the Offered
Securities are to be purchased by the Underwriters from the
Depositor, either the initial public offering price or
prices or the method by which the price or prices at which
the Offered Securities are to be sold will be determined,
the selling concessions and reallowances, if any, any
delayed delivery arrangements, and such other information as
the Representative and the Depositor deem appropriate in
connection with the offering of the Offered Securities, but
the Depositor will not file any amendment to the
Registration Statement or any supplement to the Prospectus
of which the Representative shall not previously have been
advised and furnished with a copy a reasonable time prior to
the proposed filing or to which the Representative shall
have reasonably objected. The Depositor will use its best
efforts to cause any amendment to the Registration Statement
to become effective as promptly as possible. During the time
when a Prospectus is required to be delivered under the 1933
Act, the Depositor will comply so far as it is able with all
requirements imposed upon it by the 1933 Act and the rules
and regulations thereunder to the extent necessary to permit
the continuance of sales or of dealings in the Offered
Securities in accordance with the provisions hereof and of
the Prospectus, and the Depositor will prepare and file with
the Commission, promptly upon request by the Representative,
any amendments to the Registration Statement or supplements
to the Prospectus which may be necessary or advisable in
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connection with the distribution of the Offered Securities
by the Underwriters, and will use its best efforts to cause
the same to become effective as promptly as possible. The
Depositor will advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to
the Registration Statement or any amended Registration
Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed. The
Depositor will advise the Representative, promptly after it
receives notice or obtains knowledge thereof, of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order
preventing or suspending the use of any preliminary
Prospectus or the Prospectus, or the suspension of the
qualification of the Offered Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose, or of any request made
by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information, and the Depositor will use its best efforts to
prevent the issuance of any such stop order or any order
suspending any such qualification, and if any such order is
issued, to obtain the lifting thereof as promptly as
possible.
(c) If, at any time when a prospectus relating to
the Offered Securities is required to be delivered under the
1933 Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
if it is necessary for any other reason to amend or
supplement the Prospectus to comply with the 1933 Act, to
promptly notify the Representative thereof and upon their
request to prepare and file with the Commission, at the
Depositor's own expense, an amendment or supplement which
will correct such statement or omission or any amendment
which will effect such compliance.
(d) During the period when a prospectus is required
by law to be delivered in connection with the sale of the
Offered Securities pursuant to the Underwriting Agreement,
the Depositor will file, on a timely and complete basis, all
documents that are required to be filed by the Depositor
with the Commission pursuant to Sections 13, 14, or 15(d) of
the 1934 Act.
(e) To qualify the Offered Securities for offer and
sale under the securities or "Blue Sky" laws of such
jurisdictions as the Representative shall reasonably request
and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification of the
eligibility of the Offered Securities for investment under
the laws of such jurisdictions as the Representative may
designate provided that in connection therewith the
Depositor shall not be required to qualify to do business or
to file a general consent to service of process in any
jurisdiction.
(f) To make generally available to the Depositor's
security holders, as soon as practicable, but in any event
not later than eighteen months after the date on which the
filing of the Prospectus, as amended or supplemented,
pursuant to Rule 424 under the 1933 Act first occurs, an
earnings statement of the Depositor covering a twelve-month
period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section
11(a) of the 1933 Act and the applicable rules and
regulations of the Commission thereunder (including, at the
option of the Depositor, Rule 158).
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(g) For so long as any of the Offered Securities
remain outstanding, to furnish to the Representative upon
request in writing copies of such financial statements and
other periodic and special reports as the Depositor may from
time to time distribute generally to its creditors or the
holders of the Offered Securities and to furnish to the
Representative copies of each annual or other report the
Depositor shall be required to file with the Commission.
(h) For so long as any of the Offered Securities
remain outstanding, the Depositor will, or will cause the
Servicer to, furnish to the Representative, as soon as
available, a copy of (i) the annual statement of compliance
delivered by the Servicer to the Indenture Trustee under the
applicable Sale and Servicing Agreement, (ii) the annual
independent public accountants' servicing report furnished
to the Indenture Trustee pursuant to the applicable Sale and
Servicing Agreement, (iii) each report regarding the Offered
Securities mailed to the holders of such Securities, and
(iv) from time to time, such other information concerning
such Securities as the Representative may reasonably
request.
6. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with, each Underwriter, as of
the date of the Underwriting Agreement, as follows:
(a) The Registration Statement including a prospectus
relating to the Securities and the offering thereof from
time to time in accordance with Rule 415 under the 1933 Act
has been filed with the Commission and such Registration
Statement, as amended to the date of the Underwriting
Agreement, has become effective. No stop order suspending
the effectiveness of such Registration Statement has been
issued and no proceeding for that purpose has been initiated
or threatened by the Commission. A prospectus supplement
specifically relating to the Offered Securities will be
filed with the Commission pursuant to Rule 424 under the
1933 Act; provided, however, that a supplement to the
Prospectus prepared pursuant to Section - 5(b) hereof shall
be deemed to have supplemented the base Prospectus only with
respect to the Offered Securities to which it relates. The
conditions to the use of a registration statement on Form
S-3 under the 1933 Act, as set forth in the General
Instructions on Form S-3, and the conditions of Rule 415
under the 1933 Act, have been satisfied with respect to the
Depositor and the Registration Statement. There are no
contracts or documents of the Depositor that are required to
be filed as exhibits to the Registration Statement pursuant
to the 1933 Act or the rules and regulations thereunder that
have not been so filed.
(b) On the effective date of the Registration
Statement, the Registration Statement and the base
Prospectus conformed in all material respects to the
requirements of the 1933 Act and the rules and regulations
thereunder, and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading; on the date of the Underwriting
Agreement and as of the Closing Date, the Registration
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Statement and the Prospectus conform, and as amended or
supplemented, if applicable, will conform in all material
respects to the requirements of the 1933 Act and the rules
and regulations thereunder, and on the date of the
Underwriting Agreement and as of the Closing Date, neither
of such documents includes any untrue statement of a
material fact or omits to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading, and neither of such documents as
amended or supplemented, if applicable, will include any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided,
however, that the foregoing does not apply to statements or
omissions in any of such documents based upon written
information furnished to the Depositor by any Underwriter
specifically for use therein.
(c) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has
been no material adverse change in the condition, financial
or otherwise, earnings, affairs, regulatory situation or
business prospects of the Depositor, whether or not arising
in the ordinary course of the business of the Depositor.
(d) The Depositor has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(e) The Depositor has all requisite power and
authority (corporate and other) and all requisite
authorizations, approvals, orders, licenses, certificates
and permits of and from all government or regulatory
officials and bodies to own its properties, to conduct its
business as described in the Registration Statement and the
Prospectus and to execute, deliver and perform these
Standard Provisions, the Underwriting Agreement, the
Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement, except such as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution by the Underwriter of the Offered
Securities; all such authorizations, approvals, orders,
licenses, certificates are in full force and effect and
contain no unduly burdensome provisions; and, except as set
forth or contemplated in the Registration Statement or the
Prospectus, there are no legal or governmental proceedings
pending or, to the best knowledge of the Depositor,
threatened that would result in a material modification,
suspension or revocation thereof.
(f) The Offered Securities have been duly authorized,
and when the Offered Securities are issued and delivered
pursuant to the Underwriting Agreement, the Offered
Securities will have been duly executed, issued and
delivered and will be entitled to the benefits provided by
the applicable Indenture, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity (regardless
of whether the entitlement to such benefits is considered in
a proceeding in equity or at law), and will conform in
substance to the description thereof contained in the
Registration Statement and the Prospectus, and will in all
material respects be in the form contemplated by the
Indenture.
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(g) The execution and delivery by the Depositor of
these Standard Provisions, the Underwriting Agreement, the
Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement are within the corporate power of the Depositor
and none of the execution and delivery by the Depositor of
these Standard Provisions, the Underwriting Agreement, the
Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement, the consummation by the Depositor of the
transactions therein contemplated, or the compliance by the
Depositor with the provisions thereof, will conflict with or
result in a breach of, or constitute a default under, the
charter or the by-laws of the Depositor or any of the
provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Depositor or its
properties, or any of the provisions of any indenture,
mortgage, contract or other instrument to which the
Depositor is a party or by which it is bound, or will result
in the creation or imposition of a lien, charge or
encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other
instrument, except such as have been obtained under the 1933
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Offered Securities by the
Underwriters.
(h) The Underwriting Agreement has been, and at the
Closing Date the Unaffiliated Seller's Agreement and the
Sale and Servicing Agreement will have been, duly
authorized, executed and delivered by the Depositor.
(i) At the Closing Date, each of the Underwriting
Agreement, the Unaffiliated Seller's Agreement and the Sale
and Servicing Agreement will constitute a legal, valid and
binding obligation of the Depositor, enforceable against the
Depositor, in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally, and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(j) No filing or registration with, notice to, or
consent, approval, non-disapproval, authorization or order
or other action of, any court or governmental authority or
agency is required for the consummation by the Depositor of
the transactions contemplated by the Underwriting Agreement,
the Unaffiliated Seller's Agreement or the Sale and
Servicing Agreement, except such as have been obtained and
except such as may be required under the 1933 Act, the rules
and regulations thereunder, or state securities or "Blue
Sky" laws, in connection with the purchase and distribution
of the Offered Securities by the Underwriters.
(k) The Depositor owns or possesses or has obtained
all material governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to
lease, own or license, as the case may be, and to operate,
its properties and to carry on its business as presently
conducted and has received no notice of proceedings relating
to the revocation of any such license, permit, consent,
order or approval, which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business,
results of operations, net worth or condition (financial or
otherwise) of the Depositor.
9
<PAGE>
(l) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Depositor is a party or of which any
property of the Depositor is the subject which, if
determined adversely to the Depositor would individually or
in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, or
business or business prospects of the Depositor and, to the
best of the Depositor's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(m) Each of the Offered Securities will, when issued,
be a "mortgage related security" as such term is defined in
Section 3(a)(41) of the 1934 Act.
(n) At the Closing Date, each of the Mortgage Loans
which is a subject of the Unaffiliated Seller's Agreement
and the Sale and Servicing Agreement and all such Mortgage
Loans in the aggregate will meet the criteria for selection
described in the Prospectus, and at the Closing Date, the
representations and warranties made by the Depositor both
the Unaffiliated Seller's Agreement and the Sale and
Servicing Agreement will be true and correct as of such
date.
(o) At the time of execution and delivery of the
Unaffiliated Seller's Agreement and the Sale and Servicing
Agreement, the Depositor will have good and marketable title
to the Mortgage Loans being transferred to the Issuer
pursuant to the Sale and Servicing Agreement, free and clear
of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively, "Liens"),
and will not have assigned to any person (other than the
Issuer and the Indenture Trustee) any of its right, title or
interest in such Mortgage Loans or in such Unaffiliated
Seller's Agreement or such Sale and Servicing Agreement or
the Offered Securities being issued pursuant thereto, the
Depositor will have the power and authority to transfer such
Mortgage Loans to the Issuer and to transfer the Offered
Securities to each of the Underwriters, and upon execution
and delivery to the Issuer of the Sale and Servicing
Agreement and delivery to each of the Underwriters of the
Offered Securities.
(p) Any taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of
the Underwriting Agreement, these Standard Provisions, the
Indenture, the Sale and Servicing Agreement and the Offered
Securities have been or will be paid at or prior to the
Closing Date.
7. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold
harmless each Underwriter (including Prudential Securities
Incorporated acting in its capacity as Representative and as
one of the Underwriters), and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act,
against any losses, claims, damages or liabilities, joint or
10
<PAGE>
several, to which such Underwriter or such controlling
person may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any
preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each
Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by such Underwriter or
such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Depositor will not be liable in
any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any
preliminary Prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with
(1) written information furnished to the Depositor by any
Underwriter through the Representative specifically for use
therein or (2) information regarding the Mortgage Loans
except to the extent that the Depositor has been indemnified
by the Servicer. This indemnity agreement will be in
addition to any liability which the Depositor may otherwise
have.
(b) Each Underwriter will indemnify and hold harmless
the Depositor, each of the Depositor's directors, each of
the Depositor's officers who signed the Registration
Statement and each person, if any, who controls the
Depositor, within the meaning of the 1933 Act, against any
losses, claims, damages or liabilities to which the
Depositor, or any such director, officer or controlling
person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any
preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any other prospectus relating to the
Offered Securities, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statements
or alleged untrue statements or omission or alleged omission
was made in reliance upon and in conformity with written
information furnished to the Depositor by any Underwriter
through the Representative specifically for use therein; and
each Underwriter will reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with
investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in
addition to any liability which such Underwriter may
otherwise have. The Depositor acknowledges that the
statements set forth under the caption "Plan of
Distribution" in the Prospectus Supplement constitute the
only information furnished to the Depositor by or on behalf
of any Underwriter for use in the Registration Statement,
any preliminary Prospectus or the Prospectus, and each of
the several Underwriters represents and warrants that such
statements are correct as to it.
(c) In order to provide for just and equitable
contribution in circumstances in which the indemnity
agreement provided for in the preceding parts of this
Section 7 is for any reason held to be unavailable to or
11
<PAGE>
insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect
thereof) referred to therein, then the indemnifying party
shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof);
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. In determining the amount of contribution
to which the respective parties are entitled, there shall be
considered the relative benefits received by the Depositor
on the one hand, and the Underwriters on the other, from the
offering of the Offered Securities (taking into account the
portion of the proceeds of the offering realized by each),
the Depositor's and the Underwriters' relative knowledge and
access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable
considerations appropriate in the circumstances. The
Depositor and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined
by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose).
No Underwriter or person controlling such Underwriter shall
be obligated to make contribution hereunder which in the
aggregate exceeds the total underwriting fee of the Offered
Securities purchased by such Underwriter under the
Underwriting Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons
have otherwise been required to pay in respect of the same
or any substantially similar claim. The Underwriters'
obligation to contribute hereunder are several in proportion
to their respective underwriting obligations and not joint.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Depositor, each
officer of the Depositor who signed the Registration
Statement, and each person, if any, who controls the
Depositor within the meaning of Section 15 of the 1933 Act,
shall have the same rights to contribution as the Depositor.
8. Survival of Certain Representations and Obligations. The
respective representations, warranties, agreements, covenants, indemnities and
other statements of the Depositor, its officers and the several Underwriters set
forth in, or made pursuant to, the Underwriting Agreement shall remain in full
force and effect, regardless of any investigation, or statement as to the result
thereof, made by or on behalf of any Underwriter, the Depositor, or any of the
officers or directors or any controlling person of any of the foregoing, and
shall survive the delivery of and payment for the Offered Securities.
9. Termination.
(a) The Underwriting Agreement may be terminated
by the Depositor by notice to the Representative in the
event that a stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings
for that purpose shall have been instituted or threatened.
(b) The Underwriting Agreement may be terminated
by the Representative by notice to the Depositor in the
event that the Depositor shall have failed, refused or been
unable to perform all obligations and satisfy all conditions
to be performed or satisfied hereunder by the Depositor at
or prior to the Closing Date.
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<PAGE>
(c) Termination of the Underwriting Agreement
pursuant to this Section 9 shall be without liability of any
party to any other party other than as provided in Sections
7 and 11 hereof.
10. Default of Underwriters. If any Underwriter or
Underwriters defaults or default in their obligation to purchase Offered
Securities which it or they have agreed to purchase under the Underwriting
Agreement and the aggregate principal amount of the Offered Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase is ten
percent (10%) or less of the aggregate principal amount, notional amount or
stated amount, as applicable, of the Offered Securities to be sold under the
Underwriting Agreement, as the case may be, the other Underwriters shall be
obligated severally in proportion to their respective commitments under the
Underwriting Agreement to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so defaults or default and the aggregate principal amount of the
Offered Securities with respect to which such default or defaults occurs or
occur is more than ten percent (10%) of the aggregate principal amount, notional
amount or stated amount, as applicable, of Offered Securities to be sold under
the Underwriting Agreement, as the case may be, and arrangements satisfactory to
the Representative and the Depositor for the purchase of such Offered Securities
by other persons (who may include one or more of the non-defaulting Underwriters
including the Representative) are not made within 36 hours after any such
default, the Underwriting Agreement will terminate without liability on the part
of any non-defaulting Underwriters or the Depositor except for the expenses to
be paid or reimbursed by the Depositor pursuant to Section 11 hereof. As used in
the Underwriting Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10. Nothing herein shall
relieve a defaulting Underwriter from liability for its default.
11. Expenses. The Depositor agrees with the several
Underwriters that:
(a) whether or not the transactions contemplated
in the Underwriting Agreement are consummated or the
Underwriting Agreement is terminated, the Depositor will pay
all fees and expenses incident to the performance of its
obligations under the Underwriting Agreement, including, but
not limited to, (i) the Commission's registration fee, (ii)
the expenses of printing and distributing the Underwriting
Agreement and any related underwriting documents, the
Registration Statement, any preliminary Prospectus, the
Prospectus, any amendments or supplements to the
Registration Statement or the Prospectus, and any Blue Sky
memorandum or legal investment survey and any supplements
thereto, (iii) fees and expenses of rating agencies,
accountants and counsel for the Depositor, (iv) the expenses
referred to in Section 5(e) hereof, and (v) all
miscellaneous expenses referred to in Item 30 of the
Registration Statement;
(b) all out-of-pocket expenses, including counsel
fees, disbursements and expenses, reasonably incurred by the
Underwriters in connection with investigating, preparing to
market and marketing the Offered Securities and proposing to
13
<PAGE>
purchase and purchasing the Offered Securities under the
Underwriting Agreement will be borne and paid by the
Depositor if the Underwriting Agreement is terminated by the
Depositor pursuant to Section 9(a) hereof or by the
Representative on account of the failure, refusal or
inability on the part of the Depositor to perform all
obligations and satisfy all conditions on the part of the
Depositor to be performed or satisfied hereunder; and
(c) the Depositor will pay the cost of preparing the
certificates for the Offered Securities.
Except as otherwise provided in this Section 11, the
Underwriters agree to pay all of their expenses in connection with
investigating, preparing to market and marketing the Offered Securities and
proposing to purchase and purchasing the Offered Securities under the
Underwriting Agreement, including the fees and expenses of their counsel and any
advertising expenses incurred by them in making offers and sales of the Offered
Securities.
12. Notices. All communications under the Underwriting
Agreement shall be in writing and, if sent to the Underwriters, shall be mailed,
delivered or telegraphed and confirmed to the Representative at the address and
to the attention of the person specified in the Underwriting Agreement, and, if
sent to the Depositor, shall be mailed, delivered or telegraphed and confirmed
to Prudential Securities Secured Financing Corporation, One New York Plaza, New
York, New York 10292, Attention: Managing Director-Asset Backed Finance Group;
provided, however, that any notice to any Underwriter pursuant to the
Underwriting Agreement shall be mailed, delivered or telegraphed and confirmed
to such Underwriter at the address furnished by it.
13. Representative of Underwriters. Any Representative
identified in the Underwriting Agreement will act for the Underwriters of the
Offered Securities and any action taken by the Representative under the
Underwriting Agreement will be binding upon all of such Underwriters.
14. Successors. The Underwriting Agreement shall inure to
the benefit of and shall be binding upon the several Underwriters and the
Depositor and their respective successors and legal representatives, and nothing
expressed or mentioned herein or in the Underwriting Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of the Underwriting Agreement, or any provisions
herein contained, the Underwriting Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the
representations and warranties of the Depositor contained herein or in the
Underwriting Agreement shall also be for the benefit of any person or persons
who controls or control any Underwriter within the meaning of Section 15 of the
1933 Act, and (ii) the indemnities by the several Underwriters shall also be for
the benefit of the directors of the Depositor, the officers of the Depositor who
have signed the Registration Statement and any person or persons who control the
Depositor within the meaning of Section 15 of the 1933 Act. No purchaser of the
Offered Securities from any Underwriter shall be deemed a successor because of
such purchase. These Standard Provisions and each Underwriting Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
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<PAGE>
15. Time of the Essence. Time shall be of the essence of
each Underwriting Agreement.
16. Governing Law. These Standard Provisions and each
Underwriting Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
[Signature Page Follows]
15
<PAGE>
If the foregoing is in accordance with your understanding,
please sign and return two counterparts hereof.
Yours truly,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ Evan Mitnick
----------------------------------------
Name: Evan Mitnick
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Abner Figueroa
--------------------------------------------------------------------
Name: Abner Figueroa
Title: Vice President
[Signature Page to Underwriting Agreement Standard Provisions]
<PAGE>
Exhibit A
Opinions of Brown & Wood LLP,
special counsel for the Depositor
---------------------------------
(1) Each of the Unaffiliated Seller's Agreement, the Sale
and Servicing Agreement, the Underwriting Agreement and the Standard Provisions
(collectively, with the Indenture and the Indemnification Agreement, the
"Documents") constitutes the valid, legal and binding agreement of the
Depositor, and is enforceable against the Depositor in accordance with its
terms.
(2) The Notes, assuming the due execution by the Issuer and
due authentication by the Indenture Trustee and payment therefor pursuant to the
Underwriting Agreement, are validly issued and outstanding and are entitled to
the benefits of the Indenture.
(3) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or court
is required under federal laws or the laws of the State of New York for the
execution, delivery and performance of the Documents or the offer, issuance,
sale or delivery of the Notes or the consummation of any other transaction
contemplated thereby by the Depositor, except such which have been obtained.
(4) The Registration Statement and the Prospectus (other
than the financial and statistical data included therein, as to which we are not
called upon to express any opinion), at the time the Registration Statement
became effective, as of the date of execution of the Underwriting Agreement and
as of the date hereof comply as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations thereunder, and the
Exchange Act and the rules and regulations thereunder, and we do not know of any
amendment to the Registration Statement required to be filed, or of any
contracts, indentures or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus, which has not been filed or described
as required.
(5) The registration of the Trust Estate created by the
Indenture under the Investment Company Act of 1940 is not required.
(6) The statements in the Prospectus Supplement set forth
under the caption "Description of the Notes and the Trust Certificates," to the
extent such statements purport to summarize certain provisions of the Notes or
of the Indenture, or of the Sale and Servicing Agreement or of the Unaffiliated
Seller's Agreement, are fair and accurate in all material respects.
<PAGE>
Exhibit B
Opinions of Counsel to
the Servicer
----------------------
(1) The Servicer has been duly organized and is validly
existing as a corporation in good standing under the federal laws of the United
States and is duly qualified to transact business in the State of Pennsylvania.
(2) The Servicer has the requisite power and authority to
execute and deliver, engage in the transactions contemplated by, and perform and
observe the conditions of, each of the Documents to which it is a party.
(3) Each of the Documents to which the Servicer is a party
have been duly and validly authorized, executed and delivered by the Servicer,
all requisite corporate action having been taken with respect thereto, and each
constitutes the valid, legal and binding agreement of the Servicer, and are
enforceable against the Servicer in accordance with their respective terms.
(4) Neither the transfer of the Mortgage Loans to the
Unaffiliated Seller, nor the execution, delivery or performance by the Servicer
of the each of the Documents to which it is a party (A) conflicts or will
conflict with or results or will result in a breach of, or constitutes or will
constitute a default under or violates or will violate, (i) any term or
provision of the charter or by-laws of the Servicer; (ii) any term or provision
of any material agreement, contract, instrument or indenture, to which the
Servicer or any of its subsidiaries is a party or is bound; or (iii) any order,
judgment, writ, injunction or decree of any court or governmental agency or body
or other tribunal having jurisdiction over the Servicer or any of its
properties; or (B) results in, or will result in the creation or imposition of
any lien, charge or encumbrance upon the Trust Estate or upon the Notes, except
as otherwise contemplated by the Indenture.
(5) The endorsement and delivery of each Mortgage Note, and
the preparation, delivery and recording of an Assignment of Mortgage with
respect to each Mortgage is sufficient fully to transfer to the Unaffiliated
Seller and its assignees all right, title and interest of the Servicer in the
Mortgage Note and Mortgage, as noteholder and mortgagee or assignee thereof.
(6) No consent, approval, authorization or order of,
registration or qualification of or with or notice to, any court, governmental
agency or body or other tribunal is required under the laws of the State of New
York or the Commonwealth of Pennsylvania, for the execution, delivery and
performance of each of the Documents to which it is a party or the consummation
of any other transaction contemplated thereby by the Servicer, except such which
have been obtained.
<PAGE>
(7) There are no legal or governmental suits, proceedings or
investigations pending or, to such counsel's knowledge, threatened against the
Servicer before any court, governmental agency or body or other tribunal (A)
which, if determined adversely to the Servicer, would individually or in the
aggregate have a material adverse effect on (i) the consolidated financial
position, business prospects, stockholders' equity or results of operations of
the Servicer; (ii) the Servicer's ability to perform its obligations under, or
the validity or enforceability of, each of the Documents to which it is a party;
(iii) any Mortgage Note or Mortgaged Property, or the title of any Mortgagor to
any Mortgaged Property; or (B) which have not otherwise been disclosed in the
Registration Statement and to the best of such counsel's knowledge, no such
proceedings or investigations are threatened or contemplated by governmental
authorities or threatened by others.
<PAGE>
Exhibit C
Opinions of Counsel to
the Indenture Trustee
----------------------
(1) The Indenture Trustee is a New York banking corporation
duly organized, validly existing and in good standing under the laws of the New
York and has the power and authority to enter into and to take all actions
required of it under the Indenture.
(2) Each of the Documents to which the Indenture Trustee is
a party have been duly authorized, executed and delivered by the Indenture
Trustee and each such Document constitutes the legal, valid and binding
obligation of the Indenture Trustee, enforceable against the Indenture Trustee
in accordance with its terms, except as enforceability thereof may be limited by
(A) bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, as such laws would apply in the
event of a bankruptcy, insolvency or reorganization or similar occurrence
affecting the Indenture Trustee, and (B) general principles of equity regardless
of whether such enforcement is sought in a proceeding at law or in equity.
(3) No consent, approval, authorization or other action by
any governmental agency or body or other tribunal is required on the part of the
Indenture Trustee in connection with its execution and delivery of each of the
Documents to which it is a party or the performance of its obligations
thereunder.
(4) The Notes have been duly authenticated and delivered by
the Indenture Trustee.
(5) The execution and delivery of, and performance by the
Indenture Trustee of its obligations under, each of the Documents to which it is
a party do not conflict with or result in a violation of any statute or
regulation applicable to the Indenture Trustee, or the charter or bylaws of the
Indenture Trustee, or to the best knowledge of such counsel, any governmental
authority having jurisdiction over the Indenture Trustee or the terms of any
indenture or other agreement or instrument to which the Indenture Trustee is a
party or by which it is bound.
<PAGE>
Exhibit D
Opinions of Counsel to
the Issuer
----------------------
(1) The Issuer is a Delaware business trust duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the power and authority to enter into and to take all actions required
of it under the each of the Documents to which it is a party.
(2) Each of the Documents to which the Issuer is a party
have been duly authorized, executed and delivered by the Issuer and each such
Document constitutes the legal, valid and binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, except as
enforceability thereof may be limited by (A) bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, as such laws would apply in the event of a bankruptcy,
insolvency or reorganization or similar occurrence affecting the Issuer, and (B)
general principles of equity regardless of whether such enforcement is sought in
a proceeding at law or in equity.
(3) No consent, approval, authorization or other action by
any governmental agency or body or other tribunal is required on the part of the
Issuer in connection with its execution and delivery of the Documents to which
it is a party or the performance of its obligations thereunder.
(4) The Notes have been duly executed and delivered by the
Issuer.
(5) The execution and delivery of, and performance by the
Issuer of its obligations under each of the Documents to which it is a party do
not conflict with or result in a violation of any statute or regulation
applicable to the Issuer, or the certificate of trust of the Issuer, or to the
best knowledge of such counsel, any governmental authority having jurisdiction
over the Issuer or the terms of any indenture or other agreement or instrument
to which the Issuer is a party or by which it is bound.
<PAGE>
