RECEIPTS ON CORPORATE SECURITIES TRUST [ ] - [ ]
RECEIPTS ON CORPORATE SECURITIES, SERIES [ ] - [ ]
UNDERWRITING AGREEMENT
[DATE]
Prudential Securities Incorporated
One ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. INTRODUCTION. Prudential Securities Structured Assets, Inc., a
Delaware corporation (the "Depositor"), proposes to sell to you (also referred
to herein as the "Underwriter") certain Receipts on Corporate Securities, Series
[ ] - [ ] (the "Certificates"), issued in two classes by Receipts on Corporate
Securities Trust [ ] - [ ] (the "Trust"). The Certificates consist of $[ ]
aggregate Certificate Principal Balance of [Residual] Class Certificates and $[
] aggregate Certificate Principal Balance of [Amortizing] Class Certificates.
The property of the Trust will consist principally of $[ ] aggregate principal
amount of [ ]%, [Title of Underlying Securities] due [ ,] [ ] (the "Underlying
Securities") issued by [Name of Underlying Securities Issuer] (the "Underlying
Securities Issuer"), having the characteristics described in a prospectus dated
[ ,] [ ] and a supplement thereto dated [ ,] [ ] (together, the "Underlying
Securities Prospectus"). The Certificates will be issued pursuant to the Base
Trust Agreement dated as of [ ,] [ ], as supplemented by that certain Series [ ]
- [ ] Supplement dated as of [ ,] [ ] (together, as amended and supplemented
from time to time, the "Trust Agreement"), between the Depositor, as depositor,
and The Chase Manhattan Bank, as trustee (the "Trustee"). Capitalized terms used
and not otherwise defined herein shall have the meanings given to them in the
Trust Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
represents and warrants to, and agrees with you that:
(a) The Depositor meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. [ ] - [ ]) under the Act on such Form, including a related
preliminary prospectus and prospectus supplement. The Depositor may have filed
one or more amendments thereto, including the related preliminary prospectus,
each of which amendments has previously been furnished to you. The Depositor
will next file with the Commission either (i) a final prospectus in accordance
with Rules 430A and 424(b)(1) or 424(b)(4) under the Act or (ii) a final
prospectus in accordance with Rules 415 and 424(b)(2) or 424(b)(5) under the
Act. As filed, such final prospectus shall include all Rule 430A Information
and, except to the extent that you shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to the
Execution Time (as defined herein) or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus (as
defined herein) which has previously been furnished to you) as the Depositor has
advised you, prior to the Execution Time, will be included or made therein. If
the Registration Statement (as defined herein) contains the undertaking
specified by Item 512(a) of Regulation S-K, the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. Such registration
statement, as amended at the Effective Time, including all information deemed to
be a part of such registration statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, and including the exhibits thereto and any material
incorporated by reference therein, is hereinafter referred to as the
"Registration Statement", and the form of prospectus relating to the
Certificates, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) under the Act or, if no filing pursuant to Rule 424(b) is
required, as included in the Registration Statement at the Effective Date, is
hereinafter referred to as the "Prospectus". "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" shall mean the preliminary prospectus referred
to in the preceding paragraph and the preliminary prospectus, if any, included
in the Registration Statement which at the Effective Date omits Rule 430A
Information. "Rule 430A Information" means information with respect to the
Certificates and the offering of the Certificates permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3,
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date of the Registration Statement
or the issue date of such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules
and regulations of the Commission thereunder (the "Rules and Regulations"); on
the Effective Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order
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to make the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that the Depositor makes no
representation or warranty as to the information contained in or omitted from
the Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Depositor by you specifically for use in connection with preparation of the
Registration Statement or the Prospectus (or any supplement thereto). As of the
Closing Date, the Depositor's representations and warranties in the Trust
Agreement will be true and correct.
(c) The assignment and delivery of the Underlying Securities to the
Trust as of the Closing Date will vest in the Trust all the right, title and
interest therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance, except as permitted by the Trust
Agreement.
(d) The Trust is not an "investment company" within the meaning of
Investment Company Act of 1940 (the "Investment Company Act"), without taking
account of any exemption arising out of the number of holders of the
Certificates.
(e) The information provided by the Depositor pursuant to Section
5(c) hereof will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) The Depositor has full power (corporate and other) to enter into
this Agreement and the Trust Agreement and to carry out all the terms and
provisions hereof and thereof to be carried out by it.
(g) The execution and delivery of the Trust Agreement have been duly
authorized by the Depositor, and, on and as of the Closing Date, the Trust
Agreement will have been duly executed and delivered by the Depositor and,
assuming due authorization, execution and delivery by the Trustee, will be a
legal, valid, binding and enforceable instrument of the Depositor.
(h) On and as of the Closing Date, assuming due execution and
authentication thereof by the Trustee, the Certificates will be the legal,
valid, binding and enforceable obligations of the Trust, entitled to the
benefits of the Trust Agreement.
(i) The execution and delivery of this Agreement have been duly
authorized by the Depositor and this Agreement has been duly executed and
delivered by the Depositor.
(j) The issuance, offering and sale of the Certificates to the
Underwriter by the Depositor pursuant to this Agreement, the compliance by the
Depositor with the other provisions of this Agreement and the consummation of
the other transactions herein contemplated do not require the consent, approval,
authorization, registration or qualification of
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or with any governmental authority, except such as have been obtained and such
as may be required under the securities or blue sky laws of any jurisdiction.
3. PURCHASE, SALE AND DELIVERY OF THE CERTIFICATES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Depositor agrees to sell to you,
and you agree to purchase from the Depositor, the [Residual] Class Certificates
at [ ]% of the Certificate Principal Balance thereof, and the [Amortizing] Class
Certificates at [ ]% of the initial Certificate Principal Balance thereof plus
accrued interest, if any, calculated at an annual rate of [ ]% compounded
semiannually. Delivery of and payment for the Certificates shall be made at the
offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, on or about [ ,] [ ], or such other date as the parties may agree
(the "Closing Date"). Delivery of the Certificates shall be made against payment
of the purchase price in immediately available funds drawn to the order of the
Depositor. The Certificates to be so delivered will be initially represented by
one or more Certificates registered in the name of Cede & Co., the nominee of
The Depository Trust Company ("DTC"). The interests of beneficial owners of the
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates will be available only
under limited circumstances.
4. OFFERING BY THE UNDERWRITER. It is understood that, after the
Registration Statement becomes effective, you propose to offer the Certificates
for sale to the public (which may include selected dealers), as set forth in the
Prospectus.
5. COVENANTS OF THE DEPOSITOR. The Depositor covenants and agrees
with you that:
(a) The Depositor will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time, to
become effective. Prior to the termination of the offering of the Certificates,
the Depositor will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Depositor has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Depositor will file the Prospectus, properly completed, and any supplement
thereto, with the Commission pursuant to and in accordance with the applicable
paragraph of Rule 424(b) within the time period prescribed thereby and will
provide evidence satisfactory to you of such timely filing.
(b) The Depositor will advise you promptly of any proposal to amend
or supplement the Registration Statement as filed or the related Prospectus and
will not effect such amendment or supplement without your consent, which consent
will not unreasonably be withheld; the Depositor will also advise you promptly
of any request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information; and
the Depositor will also advise you promptly of the effectiveness of the
Registration Statement, of any amendment of or supplement to the Registration
Statement or the Prospectus and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that
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purpose, and the Depositor will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible the lifting of any issued
stop order.
(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act, the
Exchange Act or the Rules and Regulations, the Depositor promptly will notify
you and will prepare and file, or cause to be prepared and filed, with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission, or an
amendment or supplement which will effect such compliance. Any such filing shall
not operate as a waiver or limitation of any right of the Underwriter hereunder.
(d) As soon as practicable, but not later than sixteen months after
the original effective date of the Registration Statement, the Depositor will
cause the Trust to make generally available to Certificateholders an earnings
statement of the Trust covering a period of at least twelve months beginning
after the Effective Date of the Registration Statement which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Depositor will furnish to you copies of the Registration
Statement (one of which will include all exhibits), each related Preliminary
Prospectus, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as you request.
(f) The Depositor will arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions in the United States
as you may reasonably designate and will continue such qualifications in effect
so long as required for the distribution.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, or until such time as you shall cease to maintain a
secondary market in the Certificates, whichever occurs first, the Depositor will
deliver to you the annual statements of compliance and the annual independent
certified public accountants' reports, if any, furnished to the Trustee pursuant
to the Trust Agreement, as soon as such statements and reports are furnished to
the Trustee.
(h) So long as any of the Certificates is outstanding, the Depositor
will furnish to you (i) as soon as practicable after the end of the fiscal year
all documents required to be distributed to Certificateholders or filed with the
Commission pursuant to the Exchange Act, the Rules and Regulations thereunder or
any order of the Commission thereunder and (ii) from time to time, any other
information concerning the Depositor or the Trust filed with any government or
regulatory authority which is otherwise publicly available, as you may
reasonably request.
(i) On or before the Closing Date, the Depositor shall, to the extent
necessary, cause its records to be marked to show the Trust's absolute ownership
of the Underlying Securities, and from and after the Closing Date the Depositor
shall not take any action
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inconsistent with the Trust's ownership of such Underlying Securities, other
than as permitted by the Trust Agreement.
(j) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Depositor, the Depositor shall furnish such documents
and take any such other actions.
6. PAYMENT OF EXPENSES. The Depositor will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriter, (iv)
the fees and disbursements of the Depositor's counsel and accountants, (v) the
qualification of the Certificates under securities laws in accordance with the
provisions of Section 5(f) hereof, including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection with
the preparation of any blue sky or legal investment survey, (vi) the printing
and delivery to the Underwriter of copies of the Registration Statement as
originally filed and of each amendment thereto, (vii) the printing and delivery
to you of copies of any blue sky or legal investment survey prepared in
connection with the Certificates, (viii) any fees charged by rating agencies for
the rating of the Certificates and (ix) the fees and expenses of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP in its role as counsel to the Trust incurred as a
result of providing the opinions required by Section 7(g).
7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. Your obligation
to purchase and pay for the Certificates will be subject to the accuracy of the
representations and warranties on the part of the Depositor herein, to the
accuracy of the statements of officers of the Depositor made pursuant to the
provisions hereof, to the performance by the Depositor of its obligations
hereunder and to the following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless you agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00 p.m.
New York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 p.m. New York City time on such
date, or (ii) 12:00 noon New York City time on the business day following the
day on which the public offering price was determined, if such determination
occurred after 3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the Rules and Regulations
and Section 5(a) hereof, and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Depositor or you, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(c) The New York Stock Exchange, Inc. ("NYSE") shall have indicated
in writing that the [Amortizing] Class Certificates have been approved for
listing on the NYSE effective upon notice of issuance.
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(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust or the Depositor which, in the judgment of the Underwriter, materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to market the Certificates; (ii) any suspension or limitation of
trading in securities generally on the NYSE, or any setting of minimum prices
for trading on such exchange; (iii) any banking moratorium declared by Federal
or New York authorities; or (iv) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress, or
any other substantial national or international calamity or emergency if, in the
judgment of the Underwriter, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Certificates.
(e) You shall have received an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, counsel to the Depositor, addressed to you, dated the Closing
Date and substantially in the form of drafts to which you have previously agreed
and otherwise in form and substance satisfactory to you and your counsel.
(f) You shall have received an opinion addressed to you of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as special tax counsel to the
Depositor confirming that the description of selected federal income tax
consequences to holders of the Certificates that appears in the Prospectus under
the heading "Federal Income Tax Consequences" conforms to the advice given to
the Depositor by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP.
(g) You shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Underwriter, such opinion or opinions, dated the Closing Date and
addressed to you, with respect to the validity of the Certificates and such
other related matters as you shall require and the Depositor shall have
furnished or caused to be furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(h) You shall have received an opinion addressed to you and the
Depositor of [_________], counsel to the Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of internal
counsel of Prudential Securities Incorporated, dated the Closing Date and
satisfactory in form and substance to you.
(j) You shall have received certificates dated the Closing Date of
such of the principal executive, financial and accounting officers of the
Depositor as you may request, dated the Closing Date, in which such officers
shall state that, to the best of their knowledge after reasonable investigation,
(i) the representations and warranties of the Depositor contained in this
Agreement and the Trust Agreement are true and correct, that the Depositor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the Closing Date,
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and (ii) subsequent to the respective dates as of
which
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information is given in the Registration Statement and the Prospectus, no
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Trust or the Depositor has occurred, whether or not arising in the ordinary
course of business.
(k) The Certificates shall have been rated "[ ]" by [▇▇▇▇▇'▇
Investors Service, Inc.] [Standard & Poor's Ratings Services] [Duff & ▇▇▇▇▇▇
Credit Rating Co.] [Fitch IBCA, Inc.].
(l) The issuance of the Certificates shall not have resulted in a
reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued or originated by the Trust or the Depositor.
(m) On or before the applicable Closing Date, you shall have received
such further certificates, documents or other information as you may have
reasonably requested from the Depositor.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to you and your counsel. The
Depositor shall furnish to you such conformed copies of such opinions,
certificates, letters and documents in such quantities as you and your counsel
shall reasonably request.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Depositor agrees to
indemnify and hold harmless the Underwriter and its affiliates, the respective
directors, officers and controlling persons (within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act), if any, of the Underwriter and
each of the Underwriter's affiliates and any agents and employees of the
Underwriter or any of the Underwriter's affiliates (collectively, "Indemnified
Persons" and individually, an "Indemnified Person") from and against any and all
actions, claims, suits, proceedings, liabilities, losses, damages and expenses
incurred, joint or several (collectively, "Claims"), by any Indemnified Person
(including fees and disbursements of the Underwriter's counsel and each such
Indemnified Person's counsel) which are related to or arise from the
Underwriter's engagement by the Depositor, including claims that relate to or
arise from any actions taken or omitted to be taken (including any untrue or
alleged untrue statements made or any statements omitted or alleged to be
omitted) by the Company or which relate to or arise from securities laws or any
other law or legal theory, and will reimburse the Underwriter and each such
other Indemnified Person for all costs and expenses (including fees and
disbursements of the Underwriter's counsel and each such Indemnified Person's
counsel), as they are incurred, in connection with investigating, preparing for,
providing depositions for, testifying in or defending any such action or claim,
formal or informal, investigation, inquiry or other proceeding, whether or not
in connection with pending or threatened litigation, whether or not the
Underwriter or any Indemnified Person is named as a party thereto and whether or
not any liability results therefrom related to or arising from the foregoing
(collectively, "Costs"). The Depositor will not, however, be responsible for any
Claims which are found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have resulted directly and primarily from an
Indemnified Person's gross negligence or willful misconduct.
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(b) The Depositor agrees that neither the Underwriter nor any other
Indemnified Person shall have any liability to the Depositor for or in
connection with such engagement except liability for Claims (i) that are found
in a final judgment by a court of competent jurisdiction (not subject to further
appeal) to have resulted directly and primarily from an Indemnified Person's
gross negligence or willful misconduct or (ii) that arise from written
information relating to the Underwriter furnished to the Depositor by or on
behalf of the Underwriter specifically for inclusion in the Registration
Statement, the Prospectus or in any amendment thereof or supplement thereto, or
any related Preliminary Prospectus. The Depositor acknowledges that the
statements set forth in the last paragraph on the cover page and under the
headings "Plan of Distribution" in the Prospectus and "Method of Distribution"
in the Prospectus Supplement constitute the only information furnished in
writing by or on behalf of the Underwriter for inclusion in the Prospectus or
the Prospectus Supplement and you confirm that such statements are correct. The
Depositor also agrees that the Depositor will not, without the prior written
consent of the Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened Claim in respect of which indemnification
may be sought hereunder (whether or not the Underwriter or any Indemnified
Person is an actual or potential party to such Claim). Such prior written
consent of the Underwriter shall be required only with respect to the
Underwriter determining that such settlement, compromise or consent complies
with the terms of the following sentence and does not impose any material
obligation on the Underwriter or any other Indemnified Person or contain any
admission of culpability on the part of the Underwriter or any Indemnified
Person. Such settlement, compromise or consent shall include an unconditional
release of the Underwriter and each other Indemnified Person from all liability
arising out of such Claim, and the Depositor shall furnish the Underwriter with
a copy of such settlement reasonably in advance of entering into such
settlement.
(c) In order to provide for just and equitable contribution, if a
demand for indemnification or reimbursement for Claims or Costs is made pursuant
to these provisions but is not available for any reason, then the Depositor, on
the one hand, and the Underwriter, on the other hand, shall contribute to such
Claims or Costs for which such indemnification or reimbursement is held
unavailable in such proportion as is appropriate to reflect the relative
benefits to the Depositor, on the one hand, and the Underwriter, on the other
hand, in connection with the transaction or transactions from which the Claims
or Costs in question arose. The relative benefits received by the Depositor, on
the one hand, and by the Underwriter, on the other hand, shall be deemed to be
in the same proportion as the value (before deducting expenses) of the
consideration paid by or received by the Depositor in connection with the
transaction or transactions from which the Claims or Costs in question arose
bears to the total fees actually received by the Underwriter in connection
therewith. If the allocation provided by the foregoing sentence is not permitted
by applicable law, then such allocation shall be based not only on such relative
benefits determined as aforesaid but also on the relative fault of the
Depositor, on the one hand, and the Underwriter, on the other hand, as well as
any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, the parties' relative
intents, knowledge, access to information and, if applicable, whether any untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor or by the Underwriter, and any other equitable considerations
appropriate in the circumstances. Any such contribution shall be subject to the
limitation that in any event the Underwriter's aggregate contribution to all
Claims or Costs for which contribution is available hereunder shall not exceed
the amount of
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fees actually received by the Underwriter pursuant to the particular engagement
relating to the transaction or transactions from which the Claims or Costs in
question arose.
The foregoing rights to indemnity, reimbursement and contribution
shall be in addition to any rights that the Underwriter and/or any other
Indemnified Person may have at common law or otherwise. The Depositor hereby
consents to personal jurisdiction, service of process and venue in any court in
which any Claim which is subject to this Agreement is brought against the
Underwriter or any other Indemnified Person.
9. DEFAULTS OF THE UNDERWRITER. If the Underwriter defaults in its
obligations to purchase the Certificates hereunder on the Closing Date and
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of the Depositor, except as
provided in Section 11. As used in this Agreement, the term "Underwriter"
includes any person substituted for the Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
10. NO BANKRUPTCY PETITION. The Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in full
of all securities issued by the Depositor or by a trust for which the Depositor
was the depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Depositor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
11. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor or any of its officers and the Underwriter set forth in or made
pursuant to this Agreement or contained in certificates of officers of the
Depositor submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of the Underwriter or of the Depositor or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriter is not consummated, the
Depositor shall remain responsible for the expenses to be paid or reimbursed by
the Depositor pursuant to Section 6 and the respective obligations of the
Depositor and the Underwriter pursuant to Section 8 shall remain in effect. If
for any reason the purchase of the Certificates by the Underwriter is not
consummated (other than because of a failure to satisfy the conditions set forth
in items (ii), (iii) and (iv) of Section 7(d)), the Depositor will reimburse the
Underwriter, upon demand, for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Certificates.
12. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telegraphed and confirmed
to it at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇; if sent to
the Depositor, will be mailed, delivered or telegraphed, and confirmed to it at
Prudential Securities Structured Assets, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇. Any such notice will take effect at the time of
receipt.
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13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, permitted
assigns and representatives and shall inure to the benefit of the Indemnified
Parties hereunder and their successors, permitted assigns and representatives,
and no other person will have any rights or obligations hereunder.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. WAIVER OF JURY TRIAL. Each of the Underwriter and the Depositor
waives all right to trial by jury in any action, claim, suit, proceeding or
counterclaim (whether based upon contract, tort or otherwise) relating to or
arising out of this Agreement.
16. APPLICABLE LAW. This Agreement will be governed by, and construed
and enforced in accordance with, the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Depositor and the Underwriter in
accordance with its terms.
Very truly yours,
PRUDENTIAL SECURITIES STRUCTURED ASSETS, INC.
By:______________________________________
Authorized Signatory
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first written above.
PRUDENTIAL SECURITIES INCORPORATED
By:______________________________________
Authorized Signatory
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