EXHIBIT 1.1
BA MORTGAGE SECURITIES, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 199_ - __
CLASS ____ CERTIFICATES
UNDERWRITING AGREEMENT
___________ ___, 199_
[Underwriter]
[Address]
Re: BA Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 199 -
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Ladies and Gentlemen:
Pursuant to this Underwriting Agreement (this "Agreement"), BA Mortgage
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Securities, Inc., a Delaware corporation (the "Company"), proposes to sell to
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the addressee hereof (the "Underwriter"), the principal amount of the securities
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identified in Schedule I hereto (the "Securities"), to be issued under a pooling
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and servicing agreement (the "Pooling Agreement") to be dated as of _______ 1,
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199__, among the Company, as depositor (the "Depositor"), _____________________,
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as servicer (the "Servicer"), and ________________________________, as trustee
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(the "Trustee"). Capitalized terms used and not otherwise defined herein have
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the respective meanings ascribed to such terms in the Pooling Agreement.
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, the Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
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Securities and Exchange Commission (the "Commission") a registration
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statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
the Securities. Such registration statement, as amended to the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 under the
Act a supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution thereof
and has previously advised the Underwriter of all further information with
respect to the Company and the Securities to be set forth therein. Such
registration statement, including the exhibits thereto, as amended to the
date of this Agreement, is hereinafter called the "Registration Statement;"
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such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus;" and such
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supplemented form of
prospectus, in the form in which it shall be 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
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Final Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus." Any reference
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herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") other than any information contained in any
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Current Report (as defined in Section 5(b) below) filed pursuant to Section
5(b) hereof or pursuant to any other underwriting agreement entered into by
the Company, on or before the date of this Agreement, or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be incorporated therein
by reference other than any information contained in any Current Report
filed pursuant to Section 5(b) hereof or pursuant to any other underwriting
agreement entered into by the Company.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 under the Act, when, prior to the Closing Date
(as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the
Underwriter specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus or (B) any Current Report
filed pursuant to Section 5(b) hereof.
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(c) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Delaware and has
corporate and other power and authority to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under this Agreement and the Pooling Agreement.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Basic Prospectus or for any additional information or (ii) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Pooling Agreement, when delivered by the
Company, will have been duly authorized, executed and delivered by the
Company, and will constitute a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership and similar laws
affecting creditors' rights generally and to general principles of equity
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at the purchase price set forth on Schedule I hereto, the principal
amount of each class of the Securities set forth on Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at the office, on the date and at the time specified on Schedule I
hereto, which date and time may be postponed by agreement between the
Underwriter and the Company (such date and time of delivery and payment for the
Securities being herein referred to as the "Closing Date"). Delivery of the
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Securities shall be made to the Underwriter against payment by the Underwriter
of the purchase price thereof in the manner set forth on Schedule I hereto. If
Schedule I indicates that the Securities are to be issued in book-entry form,
delivery of the Securities shall be made through the facilities of the
depository or depositories set forth on Schedule I. Alternatively, physical
certificates for the Securities shall be registered in such names and in such
denominations as the Underwriter may request not less than three full business
days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and, in the case of physical certificates, packaging by the Underwriter
in New York, New York, not later than 1:00 p.m., New York City time, on the
business day prior to the Closing Date.
4. Representations, Warranties and Agreements of the Underwriter.
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The Underwriter represents and warrants to, and agrees with, the Company that it
proposes to offer
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the Securities for sale to the public as set forth in the Final Prospectus, and
all offers and sales of the Securities made by it shall be so made in compliance
with all applicable laws and regulations.
5. Agreements of the Company. The Company agrees with the
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Underwriter that:
(a) Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished the Underwriter a copy for its review prior to
filing and will not file any such proposed amendment or supplement to which
the Underwriter reasonably objects. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be submitted to the Commission
for filing pursuant to Rule 424 and will cause the Final Prospectus to be
filed with the Commission pursuant to said Rule. The Company will advise
the Underwriter promptly (i) when the Final Prospectus shall have been
submitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information relating to the
Securities, (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 Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order described in clause (iv) of the preceding sentence and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will cause or, if appropriate, will have caused
any Computational Materials, Collateral Term Sheets and ABS Term Sheets
(each as defined in Section 10 below) with respect to the Securities which
are delivered by the Underwriter to the Company pursuant to or as
contemplated by Section 10 to be filed with the Commission on a Current
Report on Form 8-K (the "Current Report") pursuant to Rule 13a-11 under the
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Exchange Act not later than, in each such case, the business day
immediately following the day on which such Computational Materials,
Collateral Term Sheets or ABS Term Sheets are delivered to counsel for the
Company by the Underwriter as provided in Section 10, and will promptly
advise the Underwriter when each such Current Report has been so filed.
Notwithstanding the preceding sentences, the Company shall have no
obligation to file materials provided by the Underwriter pursuant to or as
contemplated by Section 10 which, in the reasonable determination of the
Company after making reasonable efforts to consult with the Underwriter,
are not required to be filed pursuant to the No-Action Letters (as defined
in Section 10 below), or which contain erroneous information or contain any
untrue statement of a material fact or, which, when read in conjunction
with the Final
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Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials, Collateral Term Sheets or ABS Term Sheets provided by the
Underwriter to the Company pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the Securities
is required to be delivered under the 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 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 Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause any required post-
effective amendment to the Registration Statement containing such amendment
to be made effective as soon as possible.
(d) The Company will furnish to the Underwriter and counsel for
the Underwriter, without charge, executed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus relating to the Securities by the Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriter may reasonably request. The Company
will pay the expenses of printing all documents relating to the initial
offering of the Securities, provided that any additional expenses incurred
in connection with the requirement of delivery of a market-making
prospectus will be borne by the Underwriter.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the Underwriter
may reasonably designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will arrange
for the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
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required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
6. Conditions to the Obligations of the Underwriter. The obligation
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of the Underwriter to purchase the Securities 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 prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of
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the Closing Date, to the accuracy of the statements of the Company made in any
certificates delivered 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 no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or mailed for
filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the Underwriter the
opinion of [Cadwalader, Xxxxxxxxxx & Xxxx] [Xxxxxxx Xxxxxxxxx Xxxxxxx &
Xxxxxxx, L.L.P.], counsel for the Company, dated the Closing Date, to the
effect of paragraphs (iv), (vii), (viii), (x) and (xiv) below, and the
opinion of [ ] special counsel to the Company, dated the Closing
Date, to the effect of paragraphs (i), (ii), (iii), (v), (vi), (ix), (xi),
(xii) and (xiii) below:
(i) the Company is a duly incorporated and validly
existing corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its properties
and conduct its business currently conducted;
(ii) the Company has no subsidiaries;
(iii) the Company is not required to be qualified or
licensed to do business as a foreign corporation in any jurisdiction;
(iv) assuming that the Securities are rating at the time of
transfer to the Underwriter in one of the two highest rating
categories by a nationally recognized statistical rating organization,
each such Security at such time will be a "mortgage related security"
as such term is defined in Section 3(a)(41) of the Exchange Act;
(v) the Pooling Agreement has been duly authorized,
executed and delivered by the Company;
(vi) the Securities have been duly authorized by the
Company;
(vii) upon due authorization, execution and delivery by the
parties thereto, the Pooling Agreement will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to creditors' rights
generally, and to general principles of equity including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity),
and
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except that the enforcement of rights with respect to indemnification
and contribution obligations may be limited by applicable law;
(viii) the Securities, when duly executed, authenticated
and delivered in the manner contemplated in the Pooling Agreement and
paid for by the Underwriter pursuant to this Agreement, will be
validly issued and outstanding and entitled to the benefits of the
Pooling Agreement;
(ix) to the knowledge of such counsel, there is no legal
or governmental action, investigation or proceeding pending or
threatened against the Company (a) asserting the invalidity of this
Agreement, the Pooling Agreement or the Certificates, (b) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated hereby or (c) which would materially and
adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, this Agreement, the
Pooling Agreement or the Certificates;
(x) the Registration Statement has become effective under
the Act; to the knowledge of such counsel (a) no stop order suspending
the effectiveness of the Registration Statement with respect to the
Securities has been issued and no proceedings for that purpose have
been instituted or are pending or are threatened under the Act; and
(b) the Registration Statement, as of its effective date, and the
Final Prospectus, as of the date thereof, and each revision or
amendment thereof or supplement thereto relating to the Securities, as
of its effective date, appeared on their respective faces to be
appropriately responsive in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder
applicable to such documents as of such respective dates; and, as of
the date of the Final Prospectus, the statements set forth in the
Final Prospectus under the headings "ERISA Considerations" and
"Federal Income Tax Consequences" were, to the extent that they
summarize matters of federal law or legal conclusions, correct in all
material respects;
(xi) this Agreement has been duly authorized, executed and
delivered by the Company;
(xii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter and such other
approvals (specified in such opinion) as have been obtained;
(xiii) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein contemplated
nor the
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fulfillment of the terms hereof will conflict with, result in a breach
of, or constitute a default under the certificate of incorporation or
by-laws of the Company or, to the best knowledge of such counsel, the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Company is a party or by which it is bound,
or any order or regulation known to such counsel to be applicable to
the Company of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company;
and
(xiv) the Pooling Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended and the Trust Fund
is not required to be registered under the Investment Company Act of
1940, as amended.
Such opinion may 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 and the
Pooling Agreement. Such opinion may be qualified as an opinion only on the
laws of the State of New York, the laws of each state in which the writer
of the opinion is admitted to practice law and the Federal law of the
United States. To the extent that such counsel relies upon the opinion of
other counsel in rendering any portion of its opinion, the opinion of such
other counsel shall be attached to and delivered with the opinion of such
firm that is delivered to the Underwriter.
(c) The Company shall have furnished to the Underwriter a
letter, dated the Closing Date, of [Cadwalader, Xxxxxxxxxx & Xxxx] [Xxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.], counsel to the Company, to the effect
that in the course of such counsel's review of the Registration Statement
and the Final Prospectus and discussion of the same with certain officers
of the Company and its auditors, no facts came to the attention of such
counsel that caused such counsel to believe that the Registration
Statement, as of its effective date, or the Final Prospectus, as of the
date, or any revision or amendment thereof or supplement thereto, as of its
effective date, contained any untrue statement of a material fact or
omitted to state 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 that the Final Prospectus, or any
revision or amendment thereof or supplement thereto filed prior to the date
of such opinion, as of the date of such opinion, contained any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that such counsel
need express no opinion as to any financial statements or other financial,
numerical or statistical data contained in the Registration Statement or
the Final Prospectus or any material incorporated by reference in the
Registration Statement or the Prospectus.
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(d) The Underwriter shall have received copies, addressed to it
or on which it is entitled to rely, of opinions of counsel furnished to the
rating agencies rating the Securities as set forth on Schedule I hereto
(the "Rating Agencies").
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(e) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by an authorized officer thereof, and
dated the Closing Date, to the effect that the signer(s) of such
certificate has carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that to the best of his or her knowledge:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company has 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;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is
given in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(f) On the date hereof, PricewaterhouseCoopers LLP and/or any
other firm of certified independent public accountants acceptable to the
Underwriter shall have furnished to the Underwriter a letter, dated the
date hereof, in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, and stating in effect that using the assumptions
and methodology used by the Company, all of which shall be described in
such letter, they have recalculated such numbers and percentages set forth
in the Final Prospectus as the Underwriter may reasonably request and as
are agreed to by such accountants, compared the results of their
calculations to the corresponding items in the Final Prospectus, and found
each such number and percentage set forth in the Final Prospectus to be in
agreement with the results of such calculations. To the extent historical
financial information with respect to the Company and/or historical
financial, delinquency or related information with respect to one or more
servicers is included in the Final Prospectus, such letter or letters shall
also relate to such information.
(g) The Securities shall have received the rating or ratings
from the Rating Agencies as set forth on Schedule I hereto.
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(h) Prior to the Closing Date, the Company shall have furnished
to the Underwriter such further information, certificates, opinions and
documents as the Underwriter 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,
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 Underwriter and its counsel, this Agreement and all
obligations of the Underwriter hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph and
confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
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Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 3 hereof is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by the Underwriter, the Company will reimburse the
Underwriter upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person who controls the Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages, liabilities and actions, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law, in equity or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or cost
of investigation 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 as originally filed 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
arise out of or are based upon any omission or any alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each
such indemnified party for any legal and other fees, costs and expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
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(i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action 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
written information furnished to the Company by or on behalf of the
Underwriter specifically for use in connection with the preparation thereof
or (B) in any Current Report or any amendment or supplement thereof, except
to the extent that any
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untrue statement therein results (or is alleged to have resulted) directly
from an error (a "Collateral Error") in the information concerning the
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Mortgage Loans furnished by the Company to the Underwriter in writing or by
electronic transmission that was used in the preparation of any
Computational Materials, Collateral Term Sheets or ABS Term Sheets included
in such Current Report (or amendment or supplement thereof), (ii) such
indemnity with respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure to the benefit of the Underwriter (or any person
controlling the Underwriter) if the person asserting any such loss, claim,
damage or liability purchased the Securities from the Underwriter did not
receive a copy of the Final Prospectus (or the Final Prospectus as amended
or supplemented) excluding documents incorporated therein by reference, at
or prior to the confirmation of the sale of such Securities to such person
in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic Prospectus
or any Preliminary Final Prospectus was corrected in the Final Prospectus
(or the Final Prospectus as amended or supplemented and is found by a court
of law or equity to have caused the loss), and (iii) such indemnity with
respect to any Collateral Error shall not inure to the benefit of the
Underwriter (or any person controlling the Underwriter) if the person
asserting any loss, claim, damage or liability received any Computational
Materials, Collateral Term Sheets or ABS Term Sheets from the Underwriter
that were prepared on the basis of such Collateral Error, and, prior to the
time of confirmation of the sale of the Securities to the person, the
Company notified the Underwriter in writing of the Collateral Error or
provided in written or electronic form information superseding or
correcting such Collateral Error (in any such case, a "Corrected Collateral
--------------------
Error"), and the Underwriter failed to notify such person thereof or to
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deliver such person corrected Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets, as applicable. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriter, but only with
reference to (A) written information relating to the Underwriter furnished
to the Company by or on behalf of the Underwriter specifically for use in
the preparation of the documents referred to in the foregoing indemnity, or
(B) any Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Company by the Underwriter pursuant to or as contemplated
by Section 10 (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof
resulting from any Collateral Error, other than a Corrected Collateral
Error). This indemnity agreement will be in addition to any liability
which the Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page and under
the heading "Underwriting" or "Plan of Distribution" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in
the documents
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referred to in the foregoing indemnity (other than the Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets furnished to the
Company by the Underwriter).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action or investigation,
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; provided, that
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the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any investigation is commenced by or against
an indemnified party or 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 participate in the investigation and/or to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
--------
however, that if the defendants in any such investigation and/or action
-------
include or are likely to include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded at some point during the investigation and/or action that there
may be legal defenses available to it 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 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 participate in the
investigation and/or to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 8 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 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, approved by the
Underwriter in the case of subparagraph (a) and the Company in the case of
subparagraph (b), representing the indemnified parties under subparagraph
(a) or (b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized 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).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or
(b) of this Section 8 is due
-12-
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriter on the grounds of policy or
otherwise, the Company and the Underwriter shall contribute to the
aggregate losses, claims, damages, liabilities and actions (including legal
and other fees, costs and expenses reasonably incurred in connection with
investigating or defending same) to which the Company and the Underwriter
may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which do not arise out of or are not based
upon any untrue statement or omission of a material fact in any
Computational Materials, Collateral Term Sheets or ABS Term Sheets, in such
proportion so that the Underwriter is responsible for that portion
represented by the percentage that the underwriting discount bears to the
sum of such discount and the purchase price of the Securities specified in
Schedule I hereto and the Company is responsible for the balance; provided,
--------
however, that in no case shall the Underwriter be responsible under this
-------
subparagraph (i) for any amount in excess of the underwriting discount
applicable to the Securities purchased by the Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which arise out of or are based upon any
untrue statement or omission of a material fact in any Computational
Materials, Collateral Term Sheets or ABS Term Sheets, in such proportion as
is appropriate to reflect 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 in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. 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
in such Computational Materials, Collateral Term Sheets or ABS Term Sheets
results from information prepared by the Company on the one hand or the
Underwriter on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not
-13-
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
9. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter 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 the Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof and this Section 9 shall survive the termination or
cancellation of this Agreement.
10. Computational Materials and ABS Term Sheets.
-------------------------------------------
(a) Not later than 10:30 a.m., New York City time, on a date no
later than four business days before delivery of the Final Prospectus to
the Underwriter, the Underwriter shall deliver to the Company five complete
copies of all materials provided by the Underwriter to prospective
investors in the Securities which constitute either (i) "Computational
-------------
Materials" within the meaning of the no-action letter dated May 20, 1994
---------
issued by the Division of Corporation Finance of the Commission to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and
Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters") or (ii) "ABS
-------------- ---
Term Sheets" within the meaning of the no-action letter dated February 17,
-----------
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and together with the
----------
Xxxxxx Letters, the "No-Action Letters"), if the filing of such materials
-----------------
with the Commission is a condition of the relief granted in such letters.
In the case of any such materials that constitute "Collateral Term Sheets"
----------------------
within the meaning of the PSA Letter, if such Collateral Term Sheets have
not previously been delivered to the Company as contemplated by Section
10(b)(i) below, five complete copies of such Collateral Term Sheets shall
be delivered by the Underwriter to the Company no later than 10:30 a.m.,
New York City time, on the first business day following the date on which
such Collateral Term Sheets were initially provided to a potential
investor. Each delivery of Computational Materials, Collateral Term Sheets
and/or ABS Term Sheets to the Company pursuant to this paragraph (a) shall
be effected by delivering four copies of such materials to counsel for the
Company on behalf of the Company at the address specified in Section 15
hereof and one copy of such materials to the Company.
(b) The Underwriter represents and warrants to and agrees with
the Company, as of the date hereof and as of the Closing Date, that:
(i) if the Underwriter has provided any Collateral Term
Sheets to potential investors in the Securities prior to the date
hereof and if the
-14-
filing of such materials with the Commission is a condition of the
relief granted in the PSA Letter, then in each such case the
Underwriter delivered four copies of such materials to counsel for the
Company on behalf of the Company at the address specified in Section
15 hereof and one copy of such materials to the Company no later than
10:30 a.m., New York City time, on the first business day following
the date on which such materials were initially provided to a
potential investor;
(ii) the Computational Materials (either in original,
aggregated or consolidated form), Collateral Term Sheets and ABS Term
Sheets furnished to the Company pursuant to Section 10(a) or as
contemplated in Section 10(b)(i) constitute all of the materials
relating to the Securities furnished by the Underwriter (whether in
written, electronic or other format) to prospective investors in the
Securities which are required to be filed with the Commission in
accordance with the No-Action Letters, and all Computational
Materials, Collateral Term Sheets and ABS Term Sheets provided to
potential investors in the Securities comply with the requirements of
the No-Action Letters;
(iii) on the respective dates any such Computational
Materials and/or ABS Term Sheets with respect to the Securities
referred to in Section 10(b)(ii) were last furnished to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 10 and on the Closing
Date, such Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets did not and will not include any untrue statement of a
material fact, or, when read in conjunction with the Final Prospectus,
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iv) at the time any Computational Materials, Collateral
Term Sheets or ABS Term Sheets with respect to the Securities were
furnished to a prospective investor and on the date hereof, the
Underwriter possessed, and on the date of delivery of such materials
to the Company pursuant to or as contemplated by this Section 10 and
on the Closing Date, the Underwriter will possess, the capability,
knowledge, expertise, resources and systems of internal control
necessary to ensure that such Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets conform to the representations and
warranties of the Underwriter contained in subparagraphs (ii) and
(iii) above of this paragraph (b);
(v) all Computational Materials, Collateral Term Sheets
and ABS Term Sheets with respect to the Securities furnished to
potential investors contained and will contain a legend, prominently
displayed on the first page thereof, to the effect that the Company
has not prepared, reviewed or participated in the preparation of such
Computational Materials, Collateral Term
-15-
Sheets or ABS Term Sheets, is not responsible for the accuracy thereof
and has not authorized the dissemination thereof;
(vi) all Collateral Term Sheets with respect to the
Securities furnished to potential investors contained and will contain
a legend, prominently displayed on the first page thereof, indicating
that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Final Prospectus
and, except in the case of the initial Collateral Term Sheet, that
such information supersedes the information in all prior Collateral
Term Sheets; and
(vii) on and after the date hereof, the Underwriter shall
not deliver or authorize the delivery of any Computational Materials,
Collateral Term Sheets, ABS Term Sheets or other materials relating to
the Securities (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a Final
Prospectus prior to or at the same time as the delivery of such
Computational Materials, Collateral Term Sheets, ABS Term Sheets or
other materials.
Notwithstanding the foregoing, the Underwriter makes no representation or
warranty as to whether any Computational Materials, Collateral Term Sheets or
ABS Term Sheets with respect to the Securities included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriter from the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriter acknowledges and agrees that the Company has
not authorized and will not authorize the distribution of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets with respect to the
Securities to any prospective investor, and agrees that any such
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets
furnished to prospective investors shall include a disclaimer in the form
set forth in paragraph (b)(v) above. The Underwriter agrees that it will
not represent to potential investors that any Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets with respect to the
Securities were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, it shall be necessary to amend
or supplement the Final Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials, Collateral Term
Sheets or ABS Term Sheets provided by the Underwriter pursuant to or as
contemplated by this Section 10 or the omission to state therein a material
fact required, when considered in conjunction with the Final Prospectus, to
be stated therein or necessary to make the statements therein, when read in
conjunction with the Final Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the Act
or the rules
-16-
thereunder, the Underwriter, at its expense, promptly will prepare and
furnish to the Company for filing with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. The Underwriter represents and warrants
to the Company, as of the date of delivery of such amendment or supplement
to the Company, that such amendment or supplement will not include any
untrue statement of a material fact or, when read in conjunction with the
Final Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Company shall have no obligation to file such amendment or supplement if
the Company determines that (i) such amendment or supplement contains any
untrue statement of a material fact or, when read in conjunction with the
Final Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it
being understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any such
amendment or supplement provided by the Underwriter to the Company pursuant
to this paragraph (d)) or (ii) such filing is not required under the Act.
(e) The Underwriter (at its own expense) further agree to
provide to the Company any accountants' letters obtained relating to the
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets,
which accountants' letters shall be addressed to the Company or shall state
that the Company may rely thereon; provided, however, that the Underwriter
-------- -------
shall have no obligation to procure such letter.
11. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Underwriter, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or North
Carolina authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities 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 judgment of
the Underwriter, impracticable to market the Securities.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto, each person or entity, if any, who controls the
Company or the Underwriter (within the meaning of either Section 15 of the Act,
of Section 20 of the Exchange Act) and their respective successors, and assigns,
and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-17-
14. Miscellaneous.
-------------
(a) This Agreement supersedes all prior or contemporaneous agreements
and understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by the party against
whom enforcement of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts each
of which shall be deemed an original, which taken together shall constitute one
and the same instrument.
(d) The headings of the Sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
15. Notices. All communications hereunder will be in writing and
-------
effective only upon receipt and, if sent to the Underwriter, will be delivered
to [ ], Attention: [ ], or if
sent to the Company, will be delivered to the Company at 345 Xxxxxxxxxx Street,
Lower Level #2, Unit #8152, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, in either case,
with a copy to [ ].
-18-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the Underwriter.
Very truly yours,
BA MORTGAGE SECURITIES, INC.
By:_____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified on
Schedule I hereto.
[UNDERWRITER]
By:_______________________________
Name:
Title:
-19-
SCHEDULE I
Underwriting Agreement dated ______, 199__
Registration Statement No:
-------------------------
Underwriter:
-----------
Title, Purchase Price and Description of Securities:
---------------------------------------------------
Title: BA Mortgage Securities, Inc. Mortgage Pass-Through Certificates,
-----
Series 199__-__
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Principal Ratings by Method of
Class Amount and Delivery
----- ------ ---------- --------
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Rating Agencies:
---------------
______________________________("_____"); ______________________. ("____")
Closing Time, Date and Location:
-------------------------------
10:00 A.M. on _______, 199__ at the offices of [ ].
Depository:
----------
Purchase Price: The Purchase Price for each Class of Securities
--------------
will be ____% of the principal amount thereof.
Payment Method: Immediately available funds.
--------------
SCH I-1
