PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
$616,668,000 (Approximate)
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
UNDERWRITING AGREEMENT
New York, New York
June 1, 1999
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center, North Tower
New York, New York 10281
Ladies and Gentlemen:
PaineWebber Mortgage Acceptance Corporation V, a Delaware
corporation (the "Company"), proposes to cause to be issued its Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 (the "Certificates"),
consisting of 13 classes designated as the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class R and
Class LR Certificates under a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of June 1, 1999, among the Company, as
depositor (the "Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer
(in such capacity, the "Servicer"), Banc One Mortgage Capital Markets, LLC, as
special servicer (in such capacity, the "Special Servicer"), LaSalle Bank
National Association , as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent") and proposes to sell the Class A-1, Class A-2,
Class X, Class B, Class C and Class D Certificates (collectively, the "Offered
Certificates") to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("MLPF&S")
and PaineWebber Incorporated ("PWI") as underwriters (each an "Underwriter" and
collectively, the "Underwriters"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in a trust (the "Trust")
primarily consisting of a segregated pool (the "Mortgage Pool") of conventional
monthly pay fixed rate mortgage loans secured by commercial, multifamily,
health-care related, manufactured housing and credit tenant properties (the
"Mortgage Loans"). The Mortgage Loans will be purchased by the Company from
▇▇▇▇▇ ▇▇▇▇▇▇ Real Estate Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc.
(collectively, the "Mortgage Loan Sellers") pursuant to two Mortgage Loan
Purchase and Sale Agreements (collectively, together with any supplements
thereto, the "Mortgage Loan Purchase Agreements"), each by and between the
Company and the applicable Mortgage Loan Seller, in exchange for immediately
available funds. The Offered Certificates are described more fully in the
Registration Statement (as
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hereinafter defined). This is to confirm the arrangements with respect to your
purchase of the Offered Certificates.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-64551) for the registration of the Offered Certificates, among other
mortgage pass-through certificates, under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to you. Such registration statement, as
amended as of the date hereof, meets the requirements set forth in Rule
415(a)(1)(x) under the 1933 Act and complies in all other material respects with
the 1933 Act and the rules and regulations thereunder. The Company proposes to
file with the Commission pursuant to Rule 424 under the 1933 Act a supplement to
the form of prospectus included in such registration statement relating to the
Offered Certificates and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect to the
Offered Certificates and the Mortgage Pool to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the "Registration Statement"; the prospectus
included in the Registration Statement, as amended, is hereinafter called the
"Basic Prospectus"; such form of prospectus supplemented by the supplement to
the form of prospectus relating to the Offered Certificates, in the form in
which it shall be first filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus that has
heretofore been filed pursuant to Rule 424 or, prior to the effective date of
the Registration Statement, pursuant to Rule 402(a) or Rule 424(a) is
hereinafter called a "Preliminary Final Prospectus."
(b) (i) The Registration Statement, as of its effective date
or the effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
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 Company makes no representations or warranties as to the information
contained in or omitted from the Registration
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Statement or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with the information furnished in writing to
the Company by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement and the Final
Prospectus.
(c) 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 full power and authority (corporate and other) to own its
properties and conduct its business, as now conducted by it, and to enter into
and perform its obligations under this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement; and the Company has received
no notice of proceedings relating to the revocation or modification of any
license, certificate, authority or permit applicable to its owning such
properties or conducting such business which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business or the operations, financial
condition or income of the Company.
(d) At each of the following times there has not been and will
not have been or, to the knowledge of the Company, there is not contemplated and
will not have been contemplated by the Commission, (i) any request by the
Commission for any further amendment of the Registration Statement or the Final
Prospectus or for any additional information that has not been complied with,
(ii) any issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose: (a) the date on which the Final Prospectus is first filed pursuant to
Rule 424 under the 1933 Act; (b) each date, prior to the Closing Date (as
hereinafter defined), on which any amendment to the Registration Statement
becomes effective; (c) the date on which any supplement to the Final Prospectus
is filed with the Commission; and (d) the Closing Date.
(e) This Agreement and the Mortgage Loan Purchase Agreements
have been, and the Pooling and Servicing Agreement when executed and delivered
as contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Company, and each constitutes, or will constitute when so
executed and delivered, a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law and (iii)
public policy considerations underlying the securities laws.
(f) The Offered Certificates and the Pooling and Servicing
Agreement will each conform in all material respects to the descriptions thereof
contained in the Final Prospectus, and the Offered Certificates will have been
duly authorized prior to the issuance thereof, and the Offered Certificates will
be validly issued and outstanding and shall be entitled to the benefits of the
Pooling and Servicing Agreement, except as the enforceability thereof may be
limited by the effects of (i) bankruptcy, reorganization, insolvency,
moratorium, receivership, liquidation or other similar laws affecting the
enforcement of the rights of creditors, (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (iii)
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public policy considerations underlying the securities laws. The description of
the Offered Certificates in the Final Prospectus will be in substantially the
respective forms to be filed on Form 8-K within 15 days after the Closing Date
and incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(g) Neither the issuance of the Certificates, nor the
execution and delivery by the Company of this Agreement, the Mortgage Loan
Purchase Agreements or the Pooling and Servicing Agreement, nor the consummation
by the Company of any of the transactions herein or therein contemplated, nor
compliance by the Company with the provisions hereof or thereof, will conflict
with or result in a breach of any term or provision of the certificate of
incorporation or by-laws of the Company or conflict with, result in a breach,
violation or acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company, which, in any such case, would materially and
adversely affect the ability of the Company to perform its obligations under
this Agreement, the Mortgage Loan Purchase Agreements or the Pooling and
Servicing Agreement. The Company is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects, or is reasonably likely in the future to
materially and adversely affect, the ability of the Company to perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements or the
Pooling and Servicing Agreement.
(h) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or the Offered Certificates,
(ii) seeking to prevent the issuance of the Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement, the
Mortgage Loan Purchase Agreements or the Pooling and Servicing Agreement, (iii)
that might materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates as described in the Final Prospectus.
(i) The Trust created by the Pooling and Servicing Agreement
will not be required to be registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(j) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
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will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Offered Certificates to the
Underwriters. The Company is not selling Certificates to the Underwriters with
any intent to hinder, delay or defraud any creditors of the Company.
(k) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Certificates hereunder or the consummation of the
transactions of the Company contemplated by this Agreement, except such as may
be required under the 1933 Act Regulations, the 1939 Act Regulations or state
securities or blue sky laws and except as has been or will be obtained prior to
the Closing Date and except for any documents permitted to be filed on Form 8-K
within 15 days after the Closing Date and any Computational Materials provided
to the Company in accordance with Section 9 herein.
(l) The Company has filed all federal, state, local and
foreign tax returns that are required to be filed or has duly requested
extensions thereof and has paid all taxes required to be paid by it and any
related assessments, fines or penalties, except for any such tax, assessment,
fine or penalty that is being contested in good faith and by appropriate
proceedings; and adequate charges, accruals and reserves have been provided for
in respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company has not been finally determined or
remains open to examination by applicable taxing authorities.
(m) On the Closing Date, the Company (i) will have good and
marketable title to the Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest placed thereon by the
Company (collectively, "Liens"), to the extent good and marketable title to the
Mortgage Loans is transferred to the Company, and (ii) will have the power and
authority to transfer such Mortgage Loans to the Trust, and upon execution and
delivery of the Pooling and Servicing Agreement by the Trust, the Trust will
have acquired ownership of all of the Company's right, title and interest in and
to the related Mortgage Loans.
(n) Any taxes, fee and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and the
Certificates payable by the Company (other than income taxes) have been paid or
will be paid at or prior to the Closing Time.
2. Purchase and Sale. Subject to the terms and conditions, and in
reliance upon the representations and warranties, set forth herein, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the applicable purchase price set
forth in a letter agreement dated as of even date herewith by and among the
Company and the Underwriters (the "Purchase Letter"), the respective portions of
each Class of the Offered Certificates set forth opposite such Underwriter's
name in Schedule I hereto, plus accrued interest on each such Class at the
related Pass-Through Rate from June 1, 1999 to but not including the Closing
Date.
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3. Delivery and Payment. (a) Delivery of and payment for the
Offered Certificates shall be made in the manner, on the date and at the time
specified in the Purchase Letter (or such later date not later than seven
business days after such specified date as the Underwriters shall designate),
which date and time may be postponed by agreement between the Underwriters and
the Company or as provided in Section 8 hereof (such date and time of delivery
and payment for the Offered Certificates being herein called the "Closing
Date"). Delivery of the Offered Certificates as set forth in the Purchase Letter
shall be made to the Underwriters for their respective accounts against payment
by wire transfer of immediately available funds by the several Underwriters of
the applicable purchase price as set forth in the Purchase Letter. Unless
delivery is made through the facilities of The Depository Trust Company, the
Offered Certificates shall be registered in such names and in such authorized
denominations as the Underwriters may request not less than 3 full business days
in advance of the Closing Date.
(b) The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 P.M. on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will not file, on or prior to the Closing
Date, any amendment to the Registration Statement or file any supplement to
(including the supplement relating to the Offered Certificates included in the
Final Prospectus) the Basic Prospectus unless the Company has furnished to you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424 under the 1933 Act. The Company will
promptly advise the Underwriters (i) when the Final Prospectus shall have been
filed or transmitted to the Commission for filing pursuant to Rule 424, (ii)
when any amendment to the Registration Statement shall have become effective,
(iii) of any request by the Commission for any amendment of the Registration
Statement or the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
or supplement the Final Prospectus to comply with the 1933 Act or the rules and
regulations
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thereunder, the Company will promptly prepare and file with the Commission,
subject to paragraph (a) of this Section 5, an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance and, if such amendment or supplement is required to be contained in a
post-effective amendment of the Registration Statement, will use its reasonable
best efforts to cause such amendment of the Registration Statement to be made
effective as soon as possible.
(c) The Company will (i) furnish to the Underwriters and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto that shall
become effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request, and (ii) file
promptly all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), subsequent to the
date of the Final Prospectus and for so long as the delivery of a prospectus by
an underwriter or dealer in connection with the Offered Certificates may be
required under the 1933 Act. The Company will file with the Commission within 15
days of the issuance of the Offered Certificates a report on Form 8-K setting
forth specific information concerning the Offered Certificates and the Mortgage
Pool to the extent that such information is not set forth in the Final
Prospectus.
(d) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will make available to the Underwriters
the annual statement as to compliance delivered to the Trustee pursuant to
Section 3.13 of the Pooling and Servicing Agreement and the annual statement of
a firm of independent public accountants furnished to the Trustee pursuant to
Section 3.14 of the Pooling and Servicing Agreement, as soon as such statements
are furnished to the Company. The Pooling and Servicing Agreement will provide
that the Servicer and the Special Servicer furnish to the Underwriters all
reports compiled by either of them pursuant to the Pooling and Servicing
Agreement under the same terms and conditions applicable to holders of the
Offered Certificates.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) The Company will pay, to the extent not paid by the
Mortgage Loan Sellers pursuant to the Mortgage Loan Purchase Agreements, all
costs and expenses in connection with the transactions herein contemplated,
including, but not limited to: (i) the fees and disbursements of its counsel;
(ii) the costs and expenses of printing (or otherwise reproducing) and
delivering the Pooling and Servicing Agreement and the Offered Certificates;
(iii) accounting fees and disbursements; (iv) the costs and expenses in
connection with the qualification or exemption of
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the Offered Certificates under state securities or blue sky laws not to exceed
$10,000, including filing fees and reasonable fees and disbursements of counsel
in connection with the preparation of any blue sky survey and in connection with
any determination of the eligibility of the Offered Certificates for investment
by institutional investors and the preparation of any legal investment survey;
(v) the expenses of printing any such blue sky survey and legal investment
survey; (vi) the costs and expenses in connection with the preparation, printing
and filing of the Registration Statement (including exhibits thereto), the Basic
Prospectus, the Preliminary Final Prospectus and the Final Prospectus, the
preparation and printing of this Agreement and the furnishing to the
Underwriters of such copies of each Preliminary Final Prospectus and Final
Prospectus as the Underwriters may reasonably request and (vii) the fees of each
Rating Agency (as defined herein). The Underwriters shall be responsible for
paying all costs and expenses incurred by them in connection with the offering
of the Offered Certificates.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed after the
date hereof and prior to the Closing Date and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
not withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted for
filing with the Commission in accordance with Rule 424 under the 1933 Act.
(b) The Company shall have delivered to you a certificate of
the Company, signed by the Chairman, the President, a managing director, a vice
president or an assistant vice president of the Company and dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; (ii) the Company has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date; (iii) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened and (iv) nothing has come to the attention of
such officer that would lead such officer to believe that the Final Prospectus
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Underwriters shall have received from O'Melveny &
▇▇▇▇▇ LLP, special counsel for the Company, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
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(i) The Company is a corporation in good standing under the
laws of the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto
have become effective under the 1933 Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, and not withdrawn, no proceedings for that purpose
have been instituted or threatened, and not terminated, and the Registration
Statement, the Final Prospectus and each amendment thereof or supplement thereto
as of their respective effective or issue dates complied as to form in all
material respects with the applicable requirements of the 1933 Act and the rules
and regulations thereunder; and such counsel does not believe that the
Registration Statement (which, for purposes of this clause, shall not be deemed
to include any exhibits thereto or any documents or other information
incorporated therein by reference), or any amendment thereof, at the time it
became effective and at the date of this Agreement, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus as of its issue date and as of the Closing Date, or as
amended or supplemented, as of the issue date of such amendment or supplement
and as of the Closing Date, contains any untrue statement of a material fact or
omits 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;
(iii) This Agreement, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements have been duly authorized, executed and
delivered by the Company and each such agreement constitutes a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors, (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 agreements that purport to provide indemnification or
contribution from securities law liabilities;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be entitled
to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final
Prospectus, as the case may be, under the headings "Certain Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, are correct in
all material respects;
(vi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust created by the Pooling
and Servicing Agreement is not required to be registered under the Investment
Company Act;
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(vii) No consent, approval, authorization or order of any New
York or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein, except such
as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Offered Certificates by the
Underwriters, and any recordation of the assignment of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet been
completed and such other approvals as have been obtained; and
(viii) Neither the issuance and sale or transfer of the
Certificates, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of the Mortgage Loan
Purchase Agreements or the Pooling and Servicing Agreement will conflict with or
result in a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of incorporation or by-laws
of the Company, or, to the knowledge of such counsel, any indenture or other
agreement or instrument to which the Company is a party or by which it is bound,
or any New York or federal statute or regulation applicable to the Company or,
to the knowledge of such counsel, any order of any New York or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
Such opinion may (x) express its reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers of, the parties to this Agreement, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement, (y)
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Company and
(z) be qualified as an opinion only on the federal laws of the United States of
America and the laws of the State of Delaware. Additionally, if so rendered,
O'Melveny & ▇▇▇▇▇ LLP may rely on the opinion of in-house counsel for the
Company as to matters relating to the Company.
(d) The Underwriters shall have received from
PriceWaterhouseCoopers LLC (the "Accountant"), one or more letters, dated the
date hereof and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(e) The Certificates have been given the rating, if any, set
forth in the Final Prospectus by ▇▇▇▇▇'▇ Investors Services, Inc. ("Moody's")
and ▇▇▇▇▇ IBCA, Inc. ("Fitch IBCA" and, together with Moody's, the "Rating
Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, an opinion in form and substance
satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters.
10
(i) The Underwriters shall have received from counsel for each
of the Servicer and Special Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any
opinions of counsel to the Company or each Mortgage Loan Seller supplied to the
Rating Agencies or the Trustee relating to certain matters with respect to the
Offered Certificates, the Mortgage Loan Sellers and the Mortgage Loans. Any such
opinions shall be dated the Closing Date and addressed to the Underwriters or
accompanied by the reliance letters to the Underwriters or shall state that the
Underwriters may rely upon them.
(k) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such further information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, if the Company is in breach of any covenants or agreements contained
herein or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each
Underwriter, and each person who controls any Underwriter within the meaning of
either the 1933 Act or the 1934 Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation or at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or Pool Information contained in
any Structural Term Sheets or Collateral Term Sheets or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party, 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; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (a) in reliance upon and in conformity with any Underwriter
11
Information (as defined in Section 9) or (b) arising out of or based upon the
failure of any Underwriter to comply with any provision of Section 9 hereof;
provided, further, however, that with respect to any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, the indemnity contained in
this subsection (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Certificates (or to the benefit of any person controlling such
Underwriter), to the extent that any such loss, claim, damage or liability of
such Underwriter or controlling person results from the fact that a copy of the
Basic Prospectus or the Final Prospectus correcting such misstatement or
omission and previously delivered to such Underwriter was not sent or given to
such person at or prior to the written confirmation of the sale of such Offered
Certificates to such person or from the fact that any amendment of or supplement
to the registration statement for the registration of the Offered Certificates,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
correcting such misstatement or omission and delivered to the Underwriters at
least 24 hours prior to the Closing Date was not sent or given to such person
prior to the settlement of the sale of the Offered Certificates to such person
(unless the Company shall have agreed that such amendment or supplement need not
be so sent or given). This indemnity agreement will be in addition to any
liability which the Company may otherwise have; provided, however, that the
Company shall not be liable to any Underwriter for losses of anticipated profits
from the transactions covered by this Agreement.
(b) Each Underwriter severally will indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company within
the meaning of either the 1933 Act or the 1934 Act, against any and all losses,
claims, damages or liabilities, joint or several, to which the Company or any of
them may become subject under the 1933 Act, the 1934 Act, or other federal or
state statutory law or regulation, at 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 or alleged untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or any
Underwriter Information contained in an 8-K (containing Furnished Term Sheets or
Furnished Computational Materials) or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) the failure of such Underwriter or any member of
its selling group to comply with any provision of Section 9 hereof, and each
Underwriter agrees to reimburse each such indemnified party, 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,
but, in the case of clause (i) above, only with reference to written information
furnished to the Company by or on behalf of such Underwriter or any member of
its selling group, specifically for use in the Registration Statement, or in any
revision or amendment thereof, or supplement thereto, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, and, in
the case of clause (ii) above, only the Underwriter who failed to comply with
Section 9 hereof 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
12
selling group. This indemnity agreement will be in addition to any liability
that any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party (x) hereunder unless such failure to notify prejudices the
position of the indemnifying party or results in the loss of one or more
defenses to the related cause of action or (y) otherwise than under this Section
7. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice, delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably 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 which 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 (and one local
counsel, if it deems so necessary) 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 any indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing the
indemnified parties under subsection (a) who are parties to such action), (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any indemnifiable losses, claims, damages and liabilities by reason of such
settlement. No indemnifying party who has elected to assume the defense of such
action shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
13
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable in accordance with its terms to an
indemnified party under this Section 7, then the Company and each Underwriter,
to the extent of underwriting discounts and commissions received by it, shall
individually contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, in such proportion as is appropriate to reflect (i)
the relative benefits received by the Company, on the one hand, and each
Underwriter, on the other hand, from the offering of the Offered Certificates
(taking into account the portion of the proceeds of the offering realized by
each party) and (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above, but also to reflect
the relative fault of the Company on the one hand and each Underwriter on the
other in connection with the statement or omission or failure to comply that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations (taking into account the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission or failure to comply, and any other equitable consideration appropriate
under the circumstances). The relative benefits received by the Company on the
one hand and each Underwriter, including any member of its selling group (in
each case, as set forth on Schedule I), on the other shall be in such proportion
as the total net proceeds from the offering of the Offered Certificates (before
deducing expenses) received by the Company bear to the total underwriting
discounts and commissions received by each Underwriter, including any member of
its selling group, with respect to such offering. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the respective
Underwriter, or any member of its selling group, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission or failure to comply. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were to be determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the subject
of this subsection (d) subject to the limitations therein provided under
subsection (c). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Certificates underwritten and
distributed by it were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise paid or become liable to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) or willful failure to comply with Section 9 hereof shall
be entitled to contribution from any person who was not also guilty of such
fraudulent misrepresentation or willful failure to comply. The Underwriters'
obligation in this subsection 7(d) to contribute shall be several in proportion
to their respective underwriting obligations and not joint.
14
(e) Each Underwriter will indemnify and hold harmless any
other Underwriter and each person, if any, who controls such Underwriter within
the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which any Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation or at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement of material fact contained in any
computational or other written materials developed by, mailed or otherwise
transmitted by such indemnifying Underwriter or any member of its selling group,
in connection with the Offered Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 9 hereof, 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. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
8. Default by an Underwriter. (a) If, on the Closing
Date, any Underwriter defaults in the performance of its obligations under this
Agreement, the nondefaulting Underwriters may make arrangements for the purchase
of the Offered Certificates which such defaulting Underwriter agreed but failed
to purchase by other persons satisfactory to the Company and the non-defaulting
Underwriters, but if no such arrangements are made within 36 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Section 5(f) and except that the provisions of Sections 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 I hereto that, pursuant to
this Section 8 purchases Offered Certificates which a defaulting Underwriter
agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default. If other persons are obligated or
agree to purchase the Offered Certificates of a defaulting Underwriter, either
the non-defaulting 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 Final 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 Final
Prospectus that effects any such changes.
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 Final Prospectus with respect to the Offered Certificates is
first made available to the Underwriters, the Underwriters, including any member
of its selling group, may furnish to various potential investors in Offered
Certificates, in writing: (i) "Computational Materials", as defined in a
15
no-action letter (the "▇▇▇▇▇▇ No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 Offered Certificates, each
Underwriter shall furnish to the Company, at least one business day prior to the
time of filing of the Final Prospectus pursuant to Rule 424 under the 1933 Act,
all Computational Materials used by such Underwriter, or any member of its
selling group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "Furnished Computational Materials").
(c) In connection with the Offered Certificates, each
Underwriter shall furnish to the Company, at least one business day prior to the
time of filing of the Final Prospectus pursuant to Rule 424 under the Act, all
Structural Term Sheets prepared by such Underwriter, or any member of its
selling group for the Company with respect to the offering of the Offered
Certificates and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the NoAction Letters (such
Structural Term Sheets, the "Furnished Structural Term Sheets").
(d) In connection with the Offered Certificates, each
Underwriter shall furnish to the Company, within one business day after the
first use thereof, all Collateral Term Sheets prepared by such Underwriter, or
any member of its selling group for the Company with respect to the offering of
the Offered Certificates, 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 Structured 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 it or any member of its selling group (pro rating the costs
and expenses thereof in a manner agreed to by the Underwriters) 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 Offered Certificates pursuant to Rule 424 under
the 1933 Act; and (ii) all of its Furnished Collateral Term Sheets on an 8-K not
later than 2 business days after the first use thereof.
16
(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, provide the
Company with revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be, in order to remit to the Company to 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 and such other information as may be necessary in order to permit
the Company to fulfill its obligations under Section 5(b).
(g) Each Underwriter covenants that all Computational
Materials and ABS Term Sheets used by it shall contain the following legend or
such other legend as typically used by the Underwriter:
PROSPECTIVE INVESTORS ARE ADVISED TO READ CAREFULLY, AND
SHOULD RELY SOLELY ON, THE INFORMATION CONTAINED IN THE FINAL
PROSPECTUS SUPPLEMENT TO THE PROSPECTUS DATED MARCH 25, 1999
RELATING TO CERTAIN CLASSES OF CERTIFICATES REFERRED TO ABOVE
(THE "CERTIFICATES") IN MAKING THEIR INVESTMENT DECISION.
THE INFORMATION CONTAINED HERE SHOULD BE REVIEWED ONLY IN
CONJUNCTION WITH A CAREFUL REVIEW OF SUCH PROSPECTUS
SUPPLEMENT AND PROSPECTUS. SUCH INFORMATION DOES NOT INCLUDE
ANY INFORMATION RELATING TO THE STRUCTURE OF THE CERTIFICATES
AND DOES NOT INCLUDE ALL RELEVANT INFORMATION RELATING TO THE
UNDERLYING MORTGAGE LOANS. PARTICULAR ATTENTION SHOULD BE PAID
TO THE RISKS AND SPECIAL CONSIDERATIONS ASSOCIATED WITH AN
INVESTMENT IN THE CERTIFICATES DESCRIBED IN SUCH PROSPECTUS
SUPPLEMENT AND PROSPECTUS. THE INFORMATION CONTAINED IN THIS
EXHIBIT SHOULD NOT BE VIEWED AS PROJECTIONS, FORECASTS,
PREDICTIONS OR OPINIONS WITH RESPECT TO VALUE.
ANY INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. FURTHERMORE, ANY INFORMATION CONTAINED HEREIN WILL
BE MORE
17
FULLY DESCRIBED IN THE FINAL PROSPECTUS SUPPLEMENT AND
PROSPECTUS, AND SUCH INFORMATION CONTAINED HEREIN WILL BE
FULLY SUPERSEDED THEREBY. PRIOR TO MAKING ANY INVESTMENT
DECISION, A PROSPECTIVE INVESTOR SHOULD RECEIVE AND CAREFULLY
REVIEW SUCH PROSPECTUS SUPPLEMENT AND PROSPECTUS.
NOTHING HEREIN SHOULD BE CONSIDERED AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE CERTIFICATES.
(h) Each Underwriter covenants that all Collateral Term Sheets
not otherwise prepared by or on behalf of the Company (other than the initial
Collateral Term Sheet) used by it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE
INFORMATION IN ALL PRIOR COLLATERAL TERM SHEETS, IF ANY."
(i) For purposes of this Agreement, the term "Underwriter
Information" means any written information furnished to the Company by either
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any Preliminary Final Prospectus or Final Prospectus or 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 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 Mortgage
Loans and "Prospectus Information" means the information contained in (but not
incorporated by reference in) any Preliminary Final Prospectus or Final
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.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for all Certificates if prior to such time (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Offered Certificates on the terms specified herein.
18
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Section 7 hereof shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
hand delivered or sent by facsimile transmission and confirmed to them at, in
the case of PaineWebber Inc., to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director, fax
number (▇▇▇) ▇▇▇-▇▇▇▇, in the case of ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Inc., to it at World Financial Center, New York, New York 10281, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇; or, if sent to the Company, will be
mailed, hand delivered or sent by facsimile transmission and confirmed to it at
PaineWebber Mortgage Acceptance Corporation V, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, fax number (212)
▇▇▇-▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York. 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 shall together constitute
but one and the same instrument.
[Signature Page Follows]
19
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
S-1
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PAINEWEBBER INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
S-2
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
S-3
SCHEDULE I
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
CLASS PAINEWEBBER INCORPORATED INCORPORATED
---------- -------------------------------- -------------------------------------
Class A-1 $102,000,000 $ 51,627,000
Class A-2 $237,000,000 $120,327,000
Class B $ 23,238,000 $ 12,000,000
Class C $ 25,000,000 $ 12,000,000
Class D $ 22,000,000 $ 11,476,000
Class X $467,764,602 $237,000,000
I-1