Exhibit 1.2
PAINEWEBBER ASSET ACCEPTANCE CORPORATION
$[_____________________]
(Approximate)
[___________________] Trust
Series 200[_]-[_]
FORM OF UNDERWRITING AGREEMENT
[_____________], 200[_]
PaineWebber Incorporated
[_____________]
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
PaineWebber Asset Acceptance Corporation, a Delaware corporation
(the "COMPANY"), proposes to cause to be issued Asset Backed Certificates,
Series [___], 200[_] (the "CERTIFICATES"), consisting of 9 classes designated as
the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class B,
Class R-I, Class R-II and Class R-III Certificates under a Pooling and Servicing
Agreement, dated as of [____________] [__], 200[_] (the "POOLING AND SERVICING
AGREEMENT"), among the Company, [_____________________], as master servicer and
transferor ("[___________]"), and [___________________________], as trustee (the
"TRUSTEE"), and proposes to sell the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6 and Class B Certificates (the "OFFERED CERTIFICATES") to
PaineWebber Incorporated ("PWI") and [________________] ("[__________]") and
together with PWI, the "UNDERWRITERS"), pursuant to this agreement
("AGREEMENT"). The Certificates will represent in the aggregate the entire
beneficial ownership interest in a trust fund (the "TRUST FUND") primarily
consisting of a pool of [_____________] evidenced by [_____________] and secured
primarily by [_____________] (the "[_____________]"). The [_____________] will
be purchased by the Company from [_______________] pursuant to the Receivables
Acquisition Agreement (the "RECEIVABLES ACQUISITION AGREEMENT"), by and between
the Company and [_______________], in exchange for immediately available funds.
The Certificates are described more fully in the Prospectus (as hereinafter
defined). The Pooling and Servicing Agreement, the Receivables Acquisition
Agreement, the Indemnification and Contribution Agreement and this Agreement are
collectively referred to herein as the "Transaction Documents." Only the Offered
Certificates are being sold pursuant to this Agreement.
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement on Form S-3 (No. [________]) for the
registration of the Certificates under the Securities Act of 1933 (the "1933
ACT"), which registration statement has
become effective and copies of which, as amended to the date hereof, have been
delivered to each of the Underwriters. The Company proposes to file with the
Commission pursuant to Rule 424(b)(5) under the rules and regulations of the
Commission under the Act (the "1933 ACT REGULATIONS") a prospectus supplement,
dated [___________________] [_], 200[_] (the "PROSPECTUS SUPPLEMENT"), to the
prospectus, dated [___________________] [_], 200[_], included in such
registration statement, relating to the Offered Certificates and the method of
distribution thereof. Such registration statement on Form S-3, including
exhibits thereto, as amended as of the date hereof, is hereinafter called the
"REGISTRATION STATEMENT"; and such prospectus, supplemented by the Prospectus
Supplement or further supplement relating to the Offered Certificates, is
hereinafter called the "PROSPECTUS".
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriters as
follows:
(i) The Registration Statement, as amended as of the effective
date thereof (the "EFFECTIVE DATE") and the Prospectus, as of the date
thereof, complied in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations. The Registration Statement, as of
the Effective Date, did not contain an 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. The Prospectus,
as of the date thereof, did not, and as of the Closing Date will not,
contain 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 representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus (a) arising from or included in [ ]
Information (as defined in the Indemnification and Contribution
Agreement) or (b) made in reliance upon and in conformity with
information furnished to the Company in writing by each of the
Underwriters expressly for use in the Registration Statement or
Prospectus. The Company and the Underwriters hereby acknowledge that
only the statements set forth in the last paragraph of the cover of the
Prospectus Supplement, under the caption "Underwriting" in the
Prospectus Supplement (other than the last paragraph under such caption)
and the Underwriter Information (as defined in Section 9(k)) contained
in any Furnished Term Sheets (as defined in Section 9(d)), constitute
statements made in reliance upon and in conformity with information
furnished to the Company in writing by each of the Underwriters
expressly for use in the Registration Statement, or Prospectus (such
statements being collectively referred to as "UNDERWRITER STATEMENTS").
(ii) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, whether or not arising in the
ordinary course of business, and (B) there have been no transactions
entered into by the Company, other than those in the ordinary course of
business, which are material with respect to the Company, in either case
which would materially and adversely affect
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the Company's ability to perform its obligations hereunder or under the
Transaction Documents to which it is a party.
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and operate
its properties and to conduct its business, as now conducted by it, and
to enter into and perform its obligations under the Transaction
Documents to which it is a party; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a
material and adverse effect on the Company's ability to perform its
obligations hereunder or under any Transaction Document to which the
Company is a party.
(iv) The Company is not in violation of its charter or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party, or to which any of the property or assets
of the Company may be subject, or by which it or any of them may be
bound; and the issuance and sale of the Offered Certificates to each of
the Underwriters, the execution, delivery and performance of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated therein and compliance by the Company with its
obligations thereunder have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any applicable law, administrative regulation or administrative or court
decree.
(v) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might materially
and adversely affect Company's ability to perform its obligations
hereunder or under the Transaction Documents to which it is a party; all
pending legal or governmental proceedings to which the Company is a
party or of which its property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the aggregate,
not material.
(vi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Offered Certificates hereunder, except
such as have been, or as of the Closing Date will have been, obtained or
such as may otherwise be required under applicable state securities laws
in connection with the purchase and offer and sale of the Offered
Certificates by the Underwriters and any recordation of the
respective assignments of the
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[ ] to the Trustee pursuant to the Pooling and Servicing Agreement that
have not yet been completed.
(vii) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to perform
its obligations hereunder or under any Transaction Document to which the
Company is a party, and the Company has not received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the ability of the Company to
perform its obligations hereunder or under the Transaction Documents.
(viii) Each of the Transaction Documents to which it is a party
has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of the rights
of creditors generally, (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (C)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of such Transaction Documents that purport to provide
indemnification from securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Company (i) will have good and marketable
title to the [ ] being transferred by it to the Trust Fund pursuant
thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"LIENS"), to the extent good and marketable title to the [ ] is
transferred to the Company, free and clear of all Liens, by the
Transferor, and (ii) will have the power and authority to transfer such
[ ] to the Trust Fund, and upon execution and delivery of the Pooling
and Servicing Agreement by the Trust Fund and the Transferor, the Trust
Fund will have acquired ownership of all of the Company's right, title
and interest in and to the related [ ].
(x) At the Closing Date, the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6 and Class B Certificates will be rated
not lower than "[_____]" by [Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. ("S&P")] and "[_____]" by
[Xxxxx'x Investors Service, Inc. ("MOODY'S")].
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Transaction
Documents to which it is a party and the Offered Certificates have been
paid or will be paid at or prior to the Closing Date.
(b) Any certificate signed by any officer of the Company and
delivered to each of the Underwriters or each of the Underwriters' respective
counsel shall be deemed a representation and warranty by the Company to each of
the Underwriters as to the matters covered thereby.
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SECTION 2. PURCHASE AND SALE.
Subject to the terms and conditions herein set forth and in
reliance upon the representations and warranties herein contained, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price set
forth on Schedule A hereto, the principal amount of the Offered Certificates set
forth on Schedule A hereto.
SECTION 3. DELIVERY AND PAYMENT.
Payment of the purchase price for, and delivery of, the Offered
Certificates to be purchased by the Underwriters shall be made at the office of
PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Underwriters and the
Company, at 10:00 A.M. New York City time, on [_____________] [___], 200[_],
which date and time may be postponed by agreement between you and the Company
(such time and date of payment and delivery being herein called the "CLOSING
DATE"). Payment shall be made to the Company, in immediately available Federal
funds wired to such bank as may be designated by the Company, against delivery
of the Offered Certificates or with respect to payments to be made by PWI, at
the Company's option, by appropriate notation of an intercompany transfer
between affiliates of PaineWebber Group, Inc. The Offered Certificates shall be
in such denominations and registered in such names as you may request in writing
at least two business days before Closing Date. The Offered Certificates will be
made available for examination and packaging by you not later than 10:00 A.M. on
the last business day prior to Closing Date.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants
with each of the Underwriters as follows:
(a) The Company will give the Underwriters notice of its
intention to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use by the Underwriters in connection with the
offering of the Offered Certificates which differs from the prospectus on file
at the Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), will furnish the Underwriters with copies
of any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which you shall reasonably object.
(b) The Company will cause the Prospectus to be transmitted to
the Commission for filing pursuant to Rule 424(b)(5) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
(c) The Company will deliver to the Underwriters as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Underwriters may reasonably request
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and will also deliver to the Underwriters a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits).
(d) The Company will furnish to each of the Underwriters, from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 ACT"), such
number of copies of the Prospectus (as amended or supplemented) as each of the
Underwriters may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) If during the period after the first date of the public
offering of the Offered Certificates in which a prospectus relating to the
Offered Certificates is required to be delivered under the 1933 Act, any event
shall occur as a result of which it is necessary, in the opinion of counsel for
you, to amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for you) so that, as
so amended or supplemented, the Prospectus will not include an 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 existing at the time
it is delivered to a purchaser, not misleading, and the Company will furnish to
the Underwriters a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor to arrange for the qualification of
the Offered Certificates for sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriters may
designate; provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Offered Certificates have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
(g) If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse the Underwriters for any reasonable expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by each of them in
connection with qualification of the Offered Certificates for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Underwriters have reasonably requested and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Offered Certificates, and for expenses incurred by each of
them in distributing the Prospectus (including any amendments and supplements
thereto) to the Underwriters. Except as herein provided, the Underwriters shall
be responsible for paying all costs and expenses incurred by each of them
including the fees and disbursements of counsel, in connection with the purchase
and sale of the Offered Certificates.
(h) If, during the period after the Closing Date in which a
prospectus relating to the Offered Certificates is required to be delivered
under the 1933 Act, the Company receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing
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the offer and sale of the Offered Certificates is in effect, the Company will
immediately advise the Underwriters of the issuance of such stop order. The
Company will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
Underwriters' obligation to purchase the Offered Certificates shall be subject
to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the Company's knowledge, threatened by the Commission.
(b) At Closing Date the Underwriters shall have received:
(i) The favorable opinion, dated as of the Closing Date, of
Xxxx Xxxxxx, Esq. General Counsel for the Company, in form and
substance satisfactory to the Underwriters.
(ii) The favorable opinion, dated as of the Closing Date, of
Cadwalader, Xxxxxxxxxx & Xxxx, counsel for the Company, in form and
substance satisfactory to the Underwriters.
(c) On the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, and the Underwriters shall have received a certificate of the
President or a Vice President of the Company, dated as of the Closing Date, to
the effect that (i) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of the Closing Date, (ii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date, and (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(d) On the Closing Date counsel for the Underwriters shall have
been furnished with such other documents and opinions as counsel may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Offered Certificates as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Offered
Certificates as herein contemplated shall be satisfactory in form and substance
to the Underwriters and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party.
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SECTION 6. INDEMNIFICATION. The Company and each of the
Underwriters agree that:
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the 1933 Act Regulations, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (a) arising from
or included in the [_________________] Information, (b) made in the Underwriter
Statements or (c) arising out of or based upon the failure of any Underwriter to
comply with any provision of Section 9.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to (i) untrue statements or
omissions, or alleged untrue statements or omissions, made in the Underwriter
Statements or (ii) the failure of such Underwriter or any member of its selling
group to comply with any provision of Section 9. Only the Underwriter who failed
to comply with Section 9 shall have the foregoing obligations for
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such failure, provided however, that each such Underwriter shall have the
foregoing obligations for any such failure by any member of its selling group.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have to any indemnified party otherwise than on
account of this indemnity agreement. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, the
indemnifying party elects to assume the defense thereof, it may participate
(jointly with any other indemnifying party similarly notified) with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party under this paragraph for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party, or (iv) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party).
Unless it shall assume the defense of any proceeding, the indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If any indemnifying party assumes the defense of any
proceeding, it shall not settle, compromise or consent to the entry of any
judgment with respect thereto if indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes any unconditional release of each indemnified party from
all liability arising out of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Each Underwriter will indemnify and hold harmless each other
Underwriter and each person, if any, who controls each such Underwriter within
the meaning of
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either the 1933 Act or the 1934 Act (a "NON-INDEMNIFYING UNDERWRITER") from and
against any and all losses, claims, damages or liabilities, joint or several, to
which such Non-Indemnifying Underwriter becomes subject under the 1933 Act, the
1934 Act or other federal or state statutory law or regulation, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement of
material fact contained in any computational or other written materials
developed by, mailed or otherwise transmitted by such indemnifying Underwriter
or any member of its selling group, in connection with the Offered Certificates
or in any revision or amendment thereof or supplement thereto or (ii) the
failure of such indemnifying Underwriter, or any member of its selling group, to
comply with any provision of Section 9, and agrees to reimburse each such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action.
(e) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and each
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and such Underwriter, as incurred, in such proportion as
is appropriate to reflect not only the relative benefits received by the Company
on the one hand and such Underwriter on the other from the offering of the
Offered Certificates but also the relative fault of the Company on the one hand
and such Underwriter on the other in connection with the statements or omissions
which resulted on such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and of each of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company or by such
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) or willful failure to comply with
Section 9 shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation or failure to comply with Section 9 hereto,
as the case may be. For purposes of this Section, 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 Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have. Notwithstanding the provisions of this Section
7, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Certificates underwritten
by it and distributed to the public were sold to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
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SECTION 7. DFAULT BY AN UNDERWRITER.
(a) If, on the Closing Date, any Underwriter defaults in the
performance of its obligations under this Agreement and the aggregate principal
amount of Offered Certificates that such defaulting Underwriter agreed but
failed to purchase does not exceed 10% of the total principal amount of Offered
Certificates that the Underwriters are obligated to purchase on the Closing
Date, the non-defaulting Underwriter may make arrangements for the purchase of
the Offered Certificates which such defaulting Underwriter agreed but failed to
purchase by other persons satisfactory to the Company and the non-defaulting
Underwriter. If any Underwriter so defaults and the aggregate principal amount
of Offered Certificates with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Offered Certificates that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to the non-defaulting Underwriter and the Company for the purchase
of such Offered Certificates by other persons are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
the non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Section 4(g) and except that the provisions of Sections 6, 7 and 9 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriters" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule 1 hereto that, pursuant to
this Section 8 purchases Certificates which a defaulting Underwriter agreed but
failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default. If other persons are obligated or
agree to purchase the Offered Certificates of a defaulting Underwriter, either
the non-defaulting Underwriter or the Company may postpone the Closing Date for
up to seven full business days in order to effect any changes that in the
opinion of the counsel for the Company or counsel for the non-defaulting
Underwriter may be necessary in the Registration Statement and/or the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and/or the
Prospectus that effects any such changes.
SECTION 8. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS.
(a) The parties acknowledge that, subsequent to the date on which the
Registration Statement became effective and up to and including the date on
which the Prospectus with respect to the Offered Certificates is first made
available to the Underwriters, the Underwriters, including any member of its
selling group, may furnish to various potential investors in Offered
Certificates, in writing: (i) "COMPUTATIONAL MATERIALS," as defined in a
no-action letter (the "XXXXXX NO-ACTION LETTER") issued by the staff of the
Commission on May 20, 1994 to Xxxxxx, Peabody Acceptance Corporation I, et al.,
as modified by a no-action letter (the "FIRST PSA NO-ACTION LETTER") issued by
the staff of the Commission on May 27, 1994 to the Public Securities Association
(the "PSA") and as further modified by a no-action letter (the "SECOND PSA
NO-ACTION LETTER," and together with the Xxxxxx No-Action Letter and the First
PSA No-Action Letter, the "NO-ACTION LETTERS") issued by the staff of the
Commission on February 17, 1995 to the PSA; (ii) "STRUCTURAL TERM SHEETS," as
defined in the Second PSA No-
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Action Letter and/or (iii) "COLLATERAL TERM SHEETS," as defined in the Second
PSA No-Action Letter.
(b) In connection with the Offered Certificates, each Underwriter shall
furnish to the Company, at least one business day prior to the time of filing of
the Prospectus pursuant to Rule 424 under the 1933 Act, all Computational
Materials used by such Underwriter, or any member of its selling group, and
required to be filed with the Commission in order for such Underwriter to avail
itself of the relief granted in the No-Action Letters (such Computational
Materials, the "FURNISHED COMPUTATIONAL MATERIALS").
(c) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Prospectus pursuant to Rule 424 under the 1933 Act, all Structural
Term Sheets used by such Underwriter, or any member of its selling group, and
required to be filed with the Commission in order for such Underwriter to avail
itself of the relief granted in the No-Action Letters (such Structural Term
Sheets, the "FURNISHED STRUCTURAL TERM SHEETS").
(d) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, within one business day after the first use
thereof, all Collateral Term Sheets used by such Underwriter, or any member of
its selling group, and required to be filed with the Commission in order for
such Underwriter to avail itself of the relief granted in the No-Action Letters
(such Collateral Term Sheets, the "FURNISHED COLLATERAL TERM SHEETS" and
together with the Furnished Structural Term Sheets, the "FURNISHED TERM SHEETS")
and shall advise the Company of the date on which each such Collateral Term
Sheet was first used.
(e) The Company shall cause to be filed with the Commission one
or more current reports on Form 8-K (collectively, together with any amendments
and supplements thereto, the "8-KS," and each an "8-K") with respect to all
Furnished Computational Materials and Furnished Term Sheets used by an
Underwriter or any member of its selling group such that such Underwriter may
avail itself of the relief granted in the No-Action Letters. In particular, the
Company shall cause to be filed with the Commission (i) all of the Furnished
Computational Materials and all of the Furnished Structural Term Sheets on an
8-K prior to or concurrently with the filing of the final Prospectus with
respect to the Certificates pursuant to Rule 424 under the 1933 Act; and (ii)
all of its Furnished Collateral Term Sheets on an 8-K not later than two
business days after the first use thereof.
(f) Each Underwriter represents and warrants to, and covenants
with, the Company that as presented in any Furnished Term Sheets, the
Underwriter Information (defined below) is not misleading and not inaccurate in
any material respect and that any Pool Information (defined below) contained in
any Furnished Term Sheets prepared by it which is not otherwise inaccurate in
any material respect is not presented in such Furnished Term Sheets prepared by
it in a way that is either misleading or inaccurate in any material respect.
Each Underwriter further covenants with the Company that if any Computational
Materials or ABS Term
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Sheets (as such term is defined in the Second PSA No-Action Letter) contained in
any Furnished Term Sheets are found to include any information that is
misleading or inaccurate in any material respect, such Underwriter promptly
shall inform the Company of such finding and provide the Company with revised
and/or corrected Computational Materials or ABS Term Sheets, as the case may be
and the Company shall cause to be delivered for filing to the Commission in
accordance herewith, an 8-K containing such revised and/or corrected
Computational Materials or ABS Term Sheets, as the case may be.
(g) Each Underwriter covenants that all Computational Materials
and ABS Term Sheets used by it shall contain the following legend:
"THE INFORMATION INCLUDED HEREIN IS PRODUCED AND PROVIDED
EXCLUSIVELY BY [UNDERWRITER] ("UNDERWRITER") AS UNDERWRITER FOR
THE [_] TRUST 200[_]-[_], AND NOT BY OR AS AGENT FOR [_] OR ANY
OF ITS AFFILIATES (COLLECTIVELY, THE "TRANSFEROR")."
(h) Each Underwriter covenants that all Collateral Term Sheets
used by it shall contain the following additional legend:
"THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY
THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
(i) Each Underwriter covenants that all Collateral Term Sheets
(other than the initial Collateral Term Sheet) shall contain the following
additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN
ALL PRIOR COLLATERAL TERM SHEETS, IF ANY."
(j) Notwithstanding the foregoing, subsection 9(g) will be
satisfied if all Computational Materials and ABS Term Sheets referred to therein
bear a legend in a form approved by the Company.
(k) For purposes of this Agreement, the term "UNDERWRITER
INFORMATION" means such portion, if any, of the information contained in any
Furnished Term Sheets that is not Pool Information or Prospectus Information (as
those terms are defined below); provided, however, that information contained in
Furnished Term Sheets that is not Pool Information or Prospectus Information
shall not constitute Underwriter Information to the extent such information is
inaccurate or misleading in any material respect directly as a result of it
being based on Pool Information or Prospectus Information that is inaccurate or
misleading in any material respect. "POOL INFORMATION" means the information
furnished to the Underwriters by the Company regarding the [_] and "PROSPECTUS
INFORMATION" means the information contained in (but not incorporated by
reference in) any Prospectus, provided, however, that if any information that
would otherwise constitute Pool Information or Prospectus Information is
presented in any Furnished Term Sheets in a way that is either inaccurate or
misleading in any material respect, such information shall not be Pool
Information or Prospectus Information.
-13-
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Offered Certificates to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by notice to
the Company, at any time at or prior to the Closing Date without liability on
the part of any Underwriter to the Company, if, prior to delivery and payment
for the Offered Certificates, (i) there has occurred any material adverse change
in the financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the judgment of the Underwriters, impracticable
to market the Offered Certificates on the terms and in the manner contemplated
by the Prospectus, or (ii) if trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said Exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and effective only on receipt and shall have been
duly given if mailed via the U.S. Postal Service and a reputable overnight
delivery service, hand delivered, sent by facsimile transmission or another
reasonable and standard form of telecommunication. Notices to PWI shall be
directed to PaineWebber Incorporated at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, Esq.; notices to [__________] shall be
directed to [____________________________], Attention: [_______________]; and
notices to the Company shall be directed to it at PaineWebber Asset Acceptance
Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
the Secretary with a copy to the Treasurer; or, as to any party, such other
address as may hereafter be furnished by such party to the other parties in
writing.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Section 6 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
-14-
SECTION 13. GOVERNING LAW; TIME; JURISDICTION; WAIVER OF
OBJECTION TO VENUE. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State. Specified times of day refer to New York City
time.
SECTION 14. EXECUTION IN COUNTERPARTS; SEVERABILITY; INTEGRATION.
This Agreement may be executed in any number of counterparts, each of which
shall for all purposes be deemed to be an original and all of which when taken
together shall constitute but one and the same Agreement. In case any provision
in or obligation under this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and shall constitute entire Agreement among the parties
hereto with respect to the subject matter hereof, superseding all prior oral or
written understandings.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
among each of the Underwriters and the Company in accordance with its terms.
Very truly yours,
PAINEWEBBER ASSET
ACCEPTANCE CORPORATION
By:
Name: ______________________________
Title: _______________________________
CONFIRMED AND ACCEPTED, as of the date first above written:
PAINEWEBBER INCORPORATED
By:
Name: __________________________
Title: ___________________________
[_______________________________]
By:
Name: __________________________
Title: ___________________________
-15-
Exhibit 1.2
SCHEDULE A
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Aggregate Principal Purchase Price as
Aggregate Amount or Notional a percentage of
Principal Amount Amount of the Aggregate
Class or Notional Amount Certificates to be Principal Amount
of Certificates to Purchased by of Certificates to
be Purchased by PWI [__________] be Purchased
-------------------------------------------------------------------------
Class A-1 $ $ $
Class A-2 $ $ $
Class A-3 $ $ $
Class A-4 $ $ $
Class A-5 $ $ $
Class A-6 $ $ $
Class B $ $ $
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SCHEDULE A-1