PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV
$-----------------------
____________ Home Loan Owner Trust
Series 199_-_
UNDERWRITING AGREEMENT
______________, 199_
PaineWebber Incorporated
[----------------------------
c/o PaineWebber Incorporated]
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
PaineWebber Mortgage Acceptance Corporation IV, a Delaware corporation (the
"COMPANY") proposes to sell to PaineWebber Incorporated ("PWI") [and
__________________ ("_____" and together with PWI, the "UNDERWRITERS")],
pursuant to this agreement ("AGREEMENT"), Home Loan Asset Backed Notes, Series
199_-_ (the "OFFERED NOTES") issued by ___________ Home Loan Owner Trust 199_-_,
a Delaware business trust (the "OWNER TRUST" or the "ISSUER"),. The Owner Trust
will be formed pursuant to a trust agreement, to be dated as of ____________,
199_ (the "OWNER TRUST AGREEMENT"), among the Company, as depositor, Wilmington
Trust Company, as owner trustee (the "OWNER TRUSTEE"), ____________________, as
paying agent ("____________," and in such capacity, the "PAYING AGENT") and
_______________ ("________" or the "TRANSFEROR"). The Notes will be secured by
the assets of the Owner Trust, which is primarily comprised of a pool (the
"POOL") of [closed-end, fixed and adjustable-rate first lien mortgage loans]
(the "LOANS") as described in the Prospectus (as hereinafter defined). The Loans
will be sold by the Company to the Owner Trust pursuant to a sale and servicing
agreement, to be dated as of ___________, 199_ (the "SALE AND SERVICING
AGREEMENT"), among the Owner Trust, as issuer, the Company, as depositor,
____________, as indenture trustee (in such capacity, the "INDENTURE TRUSTEE"),
and _________, as master servicer and transferor. The Loans will be sold by
____________ to the Company pursuant to a home loan purchase agreement, to be
dated as of ___________, 199_ (the "HOME LOAN PURCHASE AGREEMENT"), between the
Company, as depositor, and __________, as transferor. The Notes will be issued
pursuant to an indenture, to be dated as of ________, 199_ (the "INDENTURE"),
between the Owner Trust and the Indenture Trustee. Reference is hereby made to
(i) an indemnification and contribution agreement, dated ___________, 199_ (the
"INDEMNIFICATION AND CONTRIBUTION AGREEMENT"), among the Company, the
Underwriters and _________t, (ii) an administration agreement, to be dated as of
__________, 199_ (the "ADMINISTRATION AGREEMENT"), among the Owner Trust,
____________ (in such capacity, the "ADMINISTRATOR") and ___________ and (iii) a
custodial agreement, to be dated as of ___________, 199_ (the "CUSTODIAL
AGREEMENT"), among ____________, the Company and ____________ (in such capacity,
the "CUSTODIAN"). The Home Loan Purchase Agreement, the Sale and Servicing
Agreement, the Indenture, the Owner Trust Agreement, the Indemnification and
Contribution Agreement, the Custodial Agreement, the Administration Agreement
and this Agreement are collectively referred to herein as the "TRANSACTION
DOCUMENTS." The Notes are described more fully in the Prospectus (as hereinafter
defined). Only the Offered Notes 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. 333-______) for the
registration of the Notes 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 __________, 199_ (the "PROSPECTUS
SUPPLEMENT"), to the prospectus, dated __________, 199_, included in such
registration statement, relating to the Offered Notes 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 Notes, is hereinafter
called the "PROSPECTUS".
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Underwriter[s] 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 Underwriter[s] expressly for use in the Registration
Statement or Prospectus. The Company and the Underwriter[s] hereby
acknowledge that only the statements set forth in the ____ paragraph
of the cover of the Prospectus Supplement (other than the _____
sentence), under the caption "Underwriting" in the Prospectus
Supplement (other than the __________ paragraph and the _____
sentence of the ____ 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 Underwriter[s]
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 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 Notes to [each of]
the Underwriter[s], 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 Notes 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 Notes by the Underwriter[s] and any recordation of
the respective assignments of the Loans to the Indenture Trustee
pursuant to the Indenture 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 Sale
and Servicing Agreement, the Company (i) will have good and
marketable title to the Loans being transferred by it to the Owner
Trust 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 Loans 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 Loans to the Owner Trust, and upon
execution and delivery of the Sale and Servicing Agreement by the
Owner Trust and the Transferor, the Owner Trust will have acquired
ownership of all of the Company's right, title and interest in and
to the related Loans.
(x) At the Closing Date, the Notes will be rated not lower
than "____" by _________ ("______") and "____" by ----------------
("------").
(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 Notes
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
the Underwriter[s] or [its/their] counsel shall be deemed a representation and
warranty by the Company to the Underwriter[s] as to the matters covered thereby.
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 Underwriter[s], and [each of] the Underwriter[s] 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 Notes set forth
on Schedule A hereto.
SECTION 3. DELIVERY AND PAYMENT.
Payment of the purchase price for, and delivery of, the Offered Notes to be
purchased by the Underwriter[s] 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 Underwriter[s] and the Company, at
10:00 A.M. New York City time, on __________, 199_, 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 Notes or with
respect to payments to be made by PWI, at the Company's option, by appropriate
notation of an inter-company transfer between affiliates of PaineWebber Group,
Inc. The Offered Notes 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 Notes 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 Underwriter[s] 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 Underwriter[s] in connection with the offering of the
Offered Notes 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 Underwriter[s] 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 and will also deliver to the Underwriter[s]
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 Underwriter[s], 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
Underwriter[s] 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 Notes in which a prospectus relating to the Offered Notes 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 Underwriter[s] a reasonable
number of copies of such amendment or supplement. Neither your consent to nor
your delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5 hereof.
(f) The Company will endeavor to arrange for the qualification of the
Offered Notes 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 Notes 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
Underwriter[s] for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by [him/them] in connection with
qualification of the Offered Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriter[s] ha[ve/s] reasonably requested and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Offered Notes, and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to the
Underwriter[s]. Except as herein provided, the Underwriter[s] shall be
responsible for paying all costs and expenses incurred by each including the
fees and disbursements of counsel, in connection with the purchase and sale of
the Offered Notes.
(h) If, during the period after the Closing Date in which a prospectus
relating to the Offered Notes 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 the offer and sale of the Offered Notes
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 UNDERWRITER[S]' OBLIGATIONS. The Underwriter[s]'
obligation to purchase the Offered Notes 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 Underwriter[s] 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 Underwriter[s].
(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 Underwriter[s].
(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, the Prospectus [and the Private Placement Memorandum],
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 Underwriter[s] 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 Underwriter[s] 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 Notes 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 Notes as
herein contemplated shall be satisfactory in form and substance to the
Underwriter[s] and counsel for the Underwriter[s].
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
Underwriter[s] 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.
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 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 under the provisions
of Section 3 of the Indemnification and Contribution Agreement unless and only
to the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. 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 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 Notes 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.]
SECTION 7. 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/the] 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 [each/the] 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 [each/the] Underwriter on the other
from the offering of the Offered Notes but also the relative fault of the
Company on the one hand and the 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/the] Underwriter on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact 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 Notes 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.
SECTION 8. DEFAULT 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 Notes that such defaulting Underwriter [or Underwriters] agreed but
failed to purchase does not exceed 10% of the total principal amount of Offered
Notes that the Underwriter[s] [is/are] obligated to purchase on the Closing
Date, the non-defaulting Underwriters may make arrangements for the purchase of
the Offered Notes which such defaulting Underwriter agreed but failed to
purchase by other persons satisfactory to the Company and the non-defaulting
Underwriter[s]. If any Underwriter [or Underwriters] so default and the
aggregate principal amount of Offered Notes with respect to which such default
or defaults occur exceeds 10% of the total principal amount of Offered Notes
that the Underwriter[s] [is/are] obligated to purchase on such Closing Date and
arrangements satisfactory to the non-defaulting Underwriter[s] and the Company
for the purchase of such Offered Notes 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(h) 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 "Underwriter[s]" 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 Notes 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 Notes of a defaulting Underwriter, either the non-defaulting
Underwriters 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 Underwriter[s] 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 9. 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 Notes is first made available
to the Underwriter[s], the Underwriter[s], including any member of its selling
group, may furnish to various potential investors in Notes, 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-Action Letter and/or (iii) "COLLATERAL TERM SHEETS," as defined in the Second
PSA No-Action Letter.
(b) In connection with the Notes, [each/the ]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 Notes, [each/the] 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 Notes, [each/the] 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, Structural Term Sheets and Collateral 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 Notes 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/The] 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. [The/Each]
Underwriter further covenants with the Company that if any Computational
Materials or ABS Term 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/The] Underwriter covenants that all Computational Materials and
ABS Term Sheets used by it shall contain the following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY
PAINEWEBBER INCORPORATE AND ___________________ AS
UNDERWRITERS FOR THE ___________ HOME LOAN OWNER TRUST
199_-_ AND NOT BY _________ HOME LOAN OWNER TRUST
199_-_ NOR ANY OF ITS AFFILIATES."
(h) [The/Each] Underwriter covenants that all Collateral Term Sheets used
by it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED
BY THE DESCRIPTION OF THE MORTGAGE LOANS CONTAINED IN
THE PROSPECTUS SUPPLEMENT."
(i) [The/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."
(i) 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.
(j) 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; 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 Underwriter[s] by the
Company regarding the Loans 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.
SECTION 10. 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 Notes
to the Underwriters.
SECTION 11. TERMINATION OF AGREEMENT.
(a) The Underwriter[s] 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 Notes, (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 Underwriter[s], impracticable to market the
Offered Notes 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 12. 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 Mortgage Acceptance Corporation IV, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of the Secretary with a copy to the Treasurer;
or, as to either party, such other address as may hereafter be furnished by such
party to the other in writing.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriter[s] 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 Underwriter[s]
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 Underwriter[s] 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 Notes from the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
SECTION 14. 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 15. 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
Underwriting 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 MORTGAGE ACCEPTANCE
CORPORATION IV
By:
Name: ________________________________
Title: _______________________________
CONFIRMED AND ACCEPTED, as of the date first above written:
PAINEWEBBER INCORPORATED
By:
Name: ____________________________
Title: ___________________________
[--------------------------------
By:
Name: ____________________________
Title: ___________________________]
SCHEDULE A
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Purchase Price as a
Aggregate Principal Amount percentage of the Aggregate
Underwriter of Notes to be Purchased Principal Amount of Notes to
be Purchased
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PWI $____________________ _____%
---- $____________________ _____%
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