Exhibit 1.1
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 sell to PaineWebber Incorporated ("PWI"),
[____________________________] ("[______]"), [______________________]
("[______]"),[____________________________] ("[______]") and
[____________________________] ("[______]" and together with [_____], [_____],
[________] and PWI, the "UNDERWRITERS"), pursuant to this agreement
("AGREEMENT"), [________] Asset Backed Notes, Series 200[_]-[__], Class A-1,
Class A-2 and Class A-3 Notes (the "NOTES") issued by [______________________]
200[_]-[__], a [___________] business trust (the "OWNER TRUST" or the "ISSUER").
The Owner Trust will be formed pursuant to a trust agreement, to be dated as of
[______ __,____] (the "OWNER TRUST AGREEMENT"), among the Company, as depositor,
[_________________], as owner trustee (the "OWNER TRUSTEE"), [__________], as
paying agent ("[_________]," and in such capacity, the "PAYING AGENT") and
[___________________] ("[________]" or the "TRANSFEROR"). The Class A-1 Notes
will be secured by a pool of [_______________________________] (the
"[_________]"), the Class A-2 Notes will be secured by a pool of
[_______________________________] (the "[_________]"), and the Class A-3 Notes
will be secured by a pool of [___________________________] (the "[____________]"
and together with the [_________] and the [__________], the "[_______]") all
which represent the assets of the Owner Trust, as described in the Prospectus
(as hereinafter defined). The [_______] will be sold by the Company to the Owner
Trust pursuant to a sale and servicing agreement, to be dated as of [_____
__,.____] (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 [_________] will be sold by [_________] to the Company
pursuant to a receivables transfer agreement, to be dated as of [_____ __,____]
(the "RECEIVABLES TRANSFER AGREEMENT"), between the Company, as depositor,
and [__________], as transferor. The Notes will be issued pursuant to an
indenture, to be dated as of [_____ __, ____] (the "INDENTURE"), between the
Owner Trust and the Indenture Trustee. Reference is hereby made to (i) an
indemnification and contribution agreement, dated [_____ __, ____] (the
"INDEMNIFICATION AND CONTRIBUTION AGREEMENT"), among the Company, the
Underwriters and [_______], (ii) an administration agreement, to be dated as of
[_____ __, ____] (the "ADMINISTRATION AGREEMENT"), among the Owner Trust,
[_________] (in such capacity, the "ADMINISTRATOR") and [_________] and (iii) a
custodial agreement, to be dated as of [_____ __, ____] (the "CUSTODIAL
AGREEMENT"), among [________], the Company and [________] (in such capacity, the
"CUSTODIAN"). The Receivables Transfer 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 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. [________]) 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
Notes, 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
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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 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
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.
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(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 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 Notes by the
Underwriters and any recordation of the respective assignments of the
[_] 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 [ ] 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 [_] 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 Owner Trust,
and upon execution and delivery of the Sale and Servicing Agreement by
the Owner Trust and the Transferor, the Owner
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Trust 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 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 Underwriters or their counsel shall be deemed a representation
and warranty by the Company to the Underwriters 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 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 Notes set forth on
Schedule A hereto.
SECTION 3. DELIVERY AND PAYMENT.
Payment of the purchase price for, and delivery of, the Notes 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 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 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 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 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 Notes which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective, whether or
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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 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 Notes in which a prospectus relating to the 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 Underwriters 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 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 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
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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 them in connection with qualification of the Notes 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 Notes, and for expenses incurred 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 including the
fees and disbursements of counsel, in connection with the purchase and sale of
the Notes.
(h) If, during the period after the Closing Date in which a
prospectus relating to the 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 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 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
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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 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
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.
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
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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
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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 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 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 Underwriter on the other from
the offering of the 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 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,
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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 Notes that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total principal amount of Notes
that the Underwriters are obligated to purchase on the Closing Date, the
non-defaulting Underwriters may make arrangements for the purchase of the Notes
which such defaulting Underwriter agreed but failed to purchase by other persons
satisfactory to the Company and the non-defaulting Underwriters. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the non-defaulting
Underwriters and the Company for the purchase of such 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 "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 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 Underwriters 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.
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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 Notes is first made available to the
Underwriters, the Underwriters, 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 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 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 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
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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 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.
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(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;
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.
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
Notes to the Underwriters.
SECTION 11. 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 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 Underwriters, impracticable
to market the 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.
-14-
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 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 13. 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 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]
-15-
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: ___________________________
-16-
Exhibit 1.1
SCHEDULE A
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Aggregate Principal Amount Purchase Price as a
Aggregate Principal Amount or Notional Amount of percentage
Class of Notes to be Purchased(1) Notes to be Purchased by of the Aggregate Principal
by PWI [__________] Amount of Notes to be
Purchased
------------------------------------------------------------------------------------------------------
Class A-1 $ $ $
Class A-2 $ $ $
Class A-3 $ $ $
Class A-4 $ $ $
Class A-5 $ $ $
Class A-6 $ $ $
Class B $ $ $
------------------------------------------------------------------------------------------------------
___________________
(1) Subject to a variance of plus or minus 5%.
