EXHIBIT 1.1
BA RESIDENTIAL SECURITIES, INC.
$[_________________]
Mortgage Pass-Through Certificates,
Series 200 -
, 200
UNDERWRITING AGREEMENT
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. Introductory. BA Residential Securities, Inc., a Delaware
corporation (the "Company"), proposes to sell to Banc of America Securities LLC
(the "Underwriter"), $ principal amount of its Mortgage Pass-Through
Certificates identified in Schedule I hereto (the "Offered Certificates") having
the aggregate initial Class Certificate Balances set forth in Schedule I
(subject to an upward or downward variance, not to exceed 5%, of the precise
initial Class Certificate Balance within such range to be determined by the
Company in its sole discretion). The Offered Certificates, together with three
classes of subordinate certificates (the "Non-Offered Certificates") are
collectively referred to herein as the "Certificates" and evidence the entire
ownership interest in the assets of a trust estate (the "Trust Estate")
consisting primarily fixed interest rate mortgage loans having original terms to
maturity of not more than months, as described in Schedule I (the "Mortgage
Loans") to be acquired by the Company pursuant to a mortgage loan purchase
agreement (the "Mortgage Loan Purchase Agreement"), dated , 200 , between
the Company and , a (" "). As of the close of business on the
date specified in Schedule I as the cut-off date (the "Cut-Off Date"), the
Mortgage Loans will have the aggregate principal balance set forth in Schedule
I. This Underwriting Agreement shall hereinafter be referred to as the
"Agreement." An election will be made to treat the assets of the Trust Estate as
a real estate mortgage investment conduit (the "REMIC"). The Certificates are to
be issued pursuant to a pooling and servicing agreement, dated , 200 (the
"Pooling Agreement"), among the Company, as depositor, Bank of America, N.A., as
servicer (the "Servicer"), and , as trustee (the "Trustee"). The
Offered Certificates will be issued in the denominations specified in Schedule
I. The Pooling Agreement, this Agreement, the Mortgage Loan Purchase Agreement
and the purchase agreement, to be dated , 200 , among Banc of America
Securities LLC, as Purchaser, the Company and the Servicer (the "Purchase
Agreement") are collectively referred to herein as the "Basic Documents."
Capitalized terms used herein that are not otherwise defined herein have
the meanings assigned thereto in the Pooling Agreement.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the
file number of which is set forth in Schedule I hereto), which has become
effective, for the registration under the Securities Act of 1933, as
amended, (the "Act") of the Offered Certificates. 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 Offered
Certificates and the plan of distribution thereof and has previously
advised the Underwriter of all further information (financial and other)
with respect to the Company 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"; such
prospectus in the form in which it appears in the Registration Statement is
hereinafter called the "Basic Prospectus"; and such supplement to the Basic
Prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424, is hereinafter called the "Prospectus Supplement"
and, collectively with the Basic Prospectus, the "Final Prospectus." Any
reference herein to the Registration Statement, the Basic 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"), on or before the date of this Agreement, or the issue date
of the Basic 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 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 or the Final Prospectus, as the case may
be, and deemed to be incorporated therein by reference.
(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, (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 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
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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 or the Final Prospectus or (B) the Current Report (as defined in
Section 5(b) below), or any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the Final
Prospectus (or any amendment thereof or supplement thereto).
(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 other Basic Documents to which it
is a party.
(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 each of the other Basic Documents to which the Company
is a party, 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), and except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws or principles of public policy.
SECTION 3. Purchase, Sale and Delivery of Offered Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, the principal amount of Offered Certificates at a purchase price
set forth in Schedule I hereto.
The Company will deliver the Offered Certificates to the Underwriter,
against payment of the purchase price therefor in same day funds wired to such
bank as may be designated by the Company, or by such other manner of payment as
may be agreed upon by the Company and the Underwriter, at the offices of
Cadwalader, Xxxxxxxxxx & Xxxx, New York, New York at 10:00 A.M., Eastern time,
on , 200 or at such other place or time not later than seven full business
days thereafter as the Underwriter and the Company determine, such time being
referred to herein as the "Closing Date."
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The Offered Certificates so to be delivered will be in such denominations
and registered in such names as the Underwriter requests two full business days
prior to the Closing Date and will be made available at the office of Banc of
America Securities LLC, Charlotte, North Carolina or, upon the Underwriter's
request, through the facilities of The Depository Trust Company.
SECTION 4. Offering by the Underwriter. It is understood that the
Underwriter proposes to offer the Offered Certificates subject to this Agreement
for sale to the public (which may include selected dealers) on the terms as set
forth in the Final Prospectus.
SECTION 5. Covenants of the Company. The Company hereby covenants and
agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Offered
Certificates, 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 filed
with the Commission pursuant to Rule 424. The Company will advise the
Underwriter promptly (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424, (ii) when any amendment to the
Registration Statement relating to the Offered Certificates 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, (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 best efforts
to prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) The Company will use its best efforts to cause any
Computational Materials, Collateral Term Sheets and ABS Term Sheets (each
as defined in Section 11 below) with respect to the Offered Certificates
which are delivered by the Underwriter to the Company pursuant to Section
11 to be filed with the Commission on a Current Report on Form 8-K (the
"Current Report") pursuant to Rule 13a-11 under the Exchange Act not later
than 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 11, and will promptly advise the Underwriter when such Current
Report has been so filed. Such Current Report shall be incorporated by
reference in the Final Prospectus and the Registration Statement.
Notwithstanding the two preceding sentences, the Company shall have no
obligation to file materials provided by the Underwriter pursuant to
Section 11 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
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in Section 11 below), or which contain erroneous information or contain any
untrue statement of a material fact or which, 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; 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 11 hereof.
(c) If, at any time when a prospectus relating to the Offered
Certificates 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; provided, however, that
the Company will not be required to file any such amendment or supplement
with respect to any Computational Materials incorporated by reference in
the Final Prospectus other than any amendments or supplements of such
Computational Materials that are furnished to the Company pursuant to
Section 11(d) hereof which the Company determines to file in accordance
therewith.
(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 by the Underwriter or dealer may be required by the Act, as many
copies of the Final Prospectus and any amendments thereof and supplements
thereto (other than exhibits to the related Current Report) as the
Underwriter may reasonably request. The Company will pay the expenses of
printing all documents relating to the initial offering, 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 furnish such information as may be required
and otherwise cooperate in qualifying the Offered Certificates for sale
under the laws of such jurisdictions as the Underwriter may reasonably
designate and to 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 which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
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SECTION 6. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter 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 prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of 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) The Underwriter shall have received from (i) a letter,
dated the date hereof, confirming that they are independent public
accountants within the meaning of the Act and the rules and regulations of
the Commission promulgated thereunder and otherwise in form and substance
reasonably satisfactory to the Underwriter and counsel to the Underwriter
and (ii) if requested by the Underwriter, a letter dated the Closing Date,
updating the letter referred to in clause (i) above, in form and substance
reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be
made by the Company under the Act prior to the sale of the Offered
Certificates shall have been duly taken and made. At and prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company or
the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company or the Servicer which, in the reasonable judgment
of the Underwriter, materially impairs the investment quality of the
Offered Certificates; (ii) any downgrading in the rating of the securities
of the Company by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any securities of the Company (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange; (iv) any banking moratorium declared by federal, North Carolina
or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Underwriter, the effects of
any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Offered Certificates.
(d) The Underwriter shall have received a certificate dated the
Closing Date of an executive officer of the Company in which such officer
shall state that, to the best
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of such officer's knowledge after reasonable inspection, (i) the
representations and warranties of the Company contained in the Basic
Documents are true and correct with the same force and effect as if made on
the Closing Date and (ii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date.
(e) The Underwriter shall have received an opinion of counsel for
the Company, which may be an opinion of in-house counsel to the Company, to
the effect that:
(i) The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the state of Delaware;
(ii) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Basic Documents;
(iii) The execution and delivery by the Company of, and the
performance of the Company under, the Basic Documents have been duly
authorized by all necessary corporate action of the Company;
(iv) Each of the Basic Documents has been duly executed and
delivered by the Company;
(v) To the best of such counsel's knowledge and information,
the execution and delivery of the Basic Documents and the consummation
of the transactions contemplated therein will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument, agreement
or document to which the Company is a party or by which it may be
bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company, or any law,
administrative regulation or administrative or court decree applicable
to the Company; and
(vi) To the best of such counsel's knowledge, there is (A) no
legal or governmental proceeding pending or threatened to which the
Company is a party or to which any of the properties of the Company is
subject that is required to be described in the Registration Statement
or the Prospectus and is not so described and (B) no material contract
or document that is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not so described or filed as required.
(f) The Underwriter shall have received a certificate of an
executive officer of the Servicer, dated as of the Closing Date, to the
effect that, to the best of such officer's knowledge, such officer has
reviewed the Final Prospectus as amended or supplemented to the Closing
Date and nothing has come to such officer's attention that would lead such
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officer to believe that the Final Prospectus as amended or supplemented,
insofar as it relates to the Servicer, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(g) The Underwriter shall have received an opinion of counsel for
the Servicer, which may be an opinion of in-house counsel to the Servicer,
to the effect that:
(i) The Servicer is duly organized and validly existing as a
national banking association in good standing under the federal laws
of the United States and has the requisite power and authority,
corporate or other, to own its own properties and conduct its own
business, as presently conducted by it, and to enter into and perform
its obligations under the Basic Documents to which it is a party and
the Certificates;
(ii) Each of the Basic Documents to which the Servicer is a
party has been duly and validly authorized, executed and delivered by
such party;
(iii) No consent, approval, authorization or order of the
State of North Carolina or federal court or governmental agency or
body is required under the statutes, rules and regulations
specifically regulating (as opposed to those of general application
which may apply to) national banking associations and which are
administered by federal or North Carolina bank regulatory authorities
("Applicable North Carolina or Federal Law") for the consummation by
the Servicer of the transactions contemplated by the terms of the
Basic Documents to which the Servicer is a party, except for those
consents, approvals, authorizations or orders which previously have
been obtained;
(iv) The consummation of the transactions contemplated by,
and the performance by the Servicer of any other of the terms of, the
Basic Documents to which it is a party, will not result in a breach of
any term or provision of the charter or by-laws of the Servicer or, to
the best of such counsel's knowledge, conflict with, result in a
breach, violation or acceleration of, or constitute a default under,
the terms of any material indenture or other material agreement or
instrument to which the Servicer is a party or by which it is bound or
any order of any State of North Carolina or federal court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Servicer or any Applicable North Carolina or Federal Law; and
(v) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened before
any court, administrative agency or other tribunal (A) asserting the
invalidity of the Basic Documents to which the Servicer is a party or
the Certificates or (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by the Basic Documents to which the Servicer is a party,
which might materially and adversely affect the performance by the
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Servicer of its obligations under, or the validity or enforceability
of, the Basic Documents or the Certificates.
(h) The Underwriter shall have received an opinion of Cadwalader,
Xxxxxxxxxx & Xxxx, special counsel to the Company, which opinion may rely
on, and assume the accuracy of, the opinion described in paragraph (e)
above, dated the Closing Date, to the effect that:
(i) The Offered Certificates have been duly authorized by
all necessary corporate action of the Company and, when executed,
authenticated and delivered in the manner contemplated by the Pooling
Agreement and paid for pursuant to this Agreement, will be validly
issued and outstanding, and entitled to the benefits provided by the
Pooling Agreement;
(ii) The Mortgage Loan Purchase Agreement constitutes the
valid, legal and binding agreement of and the Company,
enforceable against and the Company in accordance with its terms,
subject to certain qualifications;
(iii) Assuming that the Pooling Agreement and this Agreement
have been duly authorized, executed and delivered by the other parties
thereto, the Pooling Agreement and this Agreement constitute the
valid, legal and binding agreements of the Company and the Servicer,
enforceable against the Company and the Servicer in accordance with
their terms, subject to certain qualifications;
(iv) The Pooling Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the trust
created by the Pooling Agreement is not required to be registered
under the Investment Company Act of 1940, as amended;
(v) Each of the Class A and Class B-1 Certificates, on the
date of original issuance thereof, will be a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act;
(vi) The Registration Statement (which for purposes of such
opinion shall not be deemed to include any exhibits filed therewith or
any documents incorporated therein by reference) has become effective
under the Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued; and
(vii) The statements (A) under the headings (1) "SUMMARY OF
PROSPECTUS--ERISA LIMITATIONS" and "--TAX STATUS," (2) "FEDERAL INCOME
TAX CONSEQUENCES" and (3) "ERISA CONSIDERATIONS" in the Basic
Prospectus and (B) under the headings (1) "SUMMARY OF TERMS--Federal
Income Tax Consequences" and "--ERISA Considerations," (2) "RISK
FACTORS--Tax Consequences of Residual
9
Certificate," (3) "FEDERAL INCOME TAX CONSEQUENCES" and (4) "ERISA
CONSIDERATIONS" in the Prospectus Supplement, insofar as such
statements purport to summarize matters of federal law or legal
conclusions with respect thereto, have been reviewed by us and are
correct in all material respects.
(i) The Underwriter shall have received copies of any opinions of
counsel for the Company that the Company is required to deliver to any
Rating Agency. Any such opinions shall be dated the Closing Date and
addressed to the Underwriter or accompanied by reliance letters addressed
to the Underwriter.
(j) The Underwriter shall have received from Cadwalader, Xxxxxxxxxx
& Xxxx, special counsel for the Underwriter, a letter dated the Closing
Date with respect to the Final Prospectus, substantially to the effect that
nothing has come to such counsel's attention in the course of its review of
the Final Prospectus which causes it to believe that the Final Prospectus,
as of the date of the Prospectus Supplement or the Closing 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; it being understood that such counsel need not express any view
as to any information incorporated by reference in the Final Prospectus or
as to the adequacy or accuracy of the financial, numerical, statistical or
quantitative information included in the Final Prospectus.
(k) The Underwriter shall have received an opinion of reasonably
acceptable counsel to the Trustee, dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel, to the effect
that:
(i) The Trustee has been duly incorporated and is validly
existing and in good standing as a national banking association under
the laws of the United States of America;
(ii) The Trustee has full power and authority to execute,
deliver and perform its duties under the Pooling Agreement and has
duly executed and delivered the Pooling Agreement and, assuming due
authorization, execution and delivery thereof by the other parties
thereto, the Pooling Agreement constitutes the legal, valid and
binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally;
(iii) The Certificates have been duly executed, authenticated
and delivered by the Trustee;
(iv) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
having jurisdiction over the trust powers of the Trustee is required
in connection with the execution and delivery by the Trustee of the
Pooling Agreement or the performance by the
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Trustee of its duties thereunder except such as have been obtained,
taken or made; and
(v) The Trustee has the power to perform its duties pursuant
to the Pooling Agreement to act as successor servicer, including the
making of Advances as described in the Pooling Agreement.
(l) On or before the Closing Date, the Underwriter shall have
received evidence satisfactory to it that each class of Offered
Certificates has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Certificates and the Pooling Agreement
will conform in all material respects to the descriptions thereof contained
in the Final Prospectus.
(n) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Final Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of counsel to the Underwriter, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Pooling
Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the
Registration Statement and the Final Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all respects to counsel for the
Underwriter, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(p) The Underwriter shall have received an opinion of counsel for
, which may be an opinion of in-house counsel to , to the
effect that:
(i) is a , duly incorporated, validly existing and
in good standing under the laws of the State of ;
(ii) has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Mortgage Loan
Purchase Agreement;
(iii) The execution and delivery by of, and the
performance of under, the Mortgage Loan Purchase Agreement have
been duly authorized by all necessary corporate action of ;
(iv) The Mortgage Loan Purchase Agreement has been duly
executed and delivered by ;
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(v) To the best of such counsel's knowledge and information,
the execution and delivery of the Mortgage Loan Purchase Agreement and
the consummation of the transactions contemplated therein will not
conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument,
agreement or document to which is a party or by which it may be bound
or to which any of the property or assets of is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of , or any law, administrative regulation or
administrative or court decree applicable to ; and
(vi) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened before
any court, administrative agency or other tribunal (a) asserting the
invalidity of the Mortgage Loan Purchase Agreement or (b) seeking to
prevent the consummation of any of the transactions contemplated by
the Mortgage Loan Purchase Agreement, which might materially and
adversely affect the performance by of its obligations
under, or the validity or enforceability of, the Mortgage Loan
Purchase Agreement.
The Company will provide or cause to be provided to the Underwriter such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
SECTION 7. Reimbursement of the Underwriter's Expenses. If the sale of
the Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriter set forth in Section 6 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 reasonably incurred by
it in connection with the proposed purchase and sale of the Offered
Certificates.
SECTION 8. Indemnification and Contribution.
12
(a) The Company agrees to indemnify and hold harmless the
Underwriter and the Servicer and any person who controls the Underwriter or
the Servicer within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, to which they
may become subject under the Act, the Exchange 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 any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for
the registration of the Offered Certificates as originally filed or in any
amendment thereof, or in the Basic Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, 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 light of the circumstances under which they were made, not
misleading, and agrees to reimburse the Underwriter and the Servicer and
each such controlling person 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 (i) 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 (A) therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter or
the Servicer specifically for use in connection with the preparation
thereof or (B) in any Current Report or any amendment or supplement
thereof, and (ii) such indemnity with respect to the Prospectus shall not
inure to the benefit of the Underwriter (or any person controlling the
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Certificates which are the subject thereof
if such person 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
Offered Certificates 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 was corrected in the Final Prospectus (or
the Final Prospectus as amended or supplemented). 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 signs the
Registration Statement and the Servicer and each person who controls the
Company or the Servicer 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 and the Servicer, 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 Section 11 and
incorporated by reference in the Registration Statement or the Final
Prospectus; except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof
resulting from any error in the information concerning the Mortgage Loans
(a "Collateral Error") furnished by the Servicer 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 any Current Report (or amendment or supplement thereof), other
than a Collateral Error as to which, prior to the time of confirmation of
the sale of the Offered Certificates to the person asserting a claim, the
13
Servicer 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
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 Underwriter may otherwise have.
The Company and the Servicer acknowledge that the statements set forth in
the Prospectus Supplement in the first sentence of the last paragraph on
the cover page, in the first sentence under the subheading "Risk
Factors--Limited Liquidity" and in the second, third and fifth paragraphs
under the heading "Method of Distribution" constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in
the documents referred to in the foregoing indemnity (other than any
Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Company by the Underwriter).
(c) The Servicer agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, the Underwriter and each person who controls the Company or the
Underwriter 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 and the Servicer, but only with reference to (A) written
information relating to the Servicer or the Mortgage Loans furnished to the
Company by or on behalf of the Servicer specifically for use in the
preparation of the documents referred to in the foregoing indemnity and (B)
any Collateral Error with respect to the Mortgage Loans, other than a
Corrected Collateral Error. The Company and the Underwriter acknowledge
that the statements set forth under the headings "The Mortgage Pool," "Bank
of America, N.A." and "Servicing of Mortgage Loans" in the Prospectus
Supplement constitute the only information furnished in writing by or on
behalf of the Servicer for inclusion in the documents referred to in the
foregoing indemnity.
(d) Promptly after receipt by an indemnified party under this
Section 8 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 8, notify the indemnifying party in
writing of the commencement thereof; but 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
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
shall have reasonably concluded 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 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
14
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 subparagraphs (a) or (c), representing
the indemnified parties under subparagraphs (a) or (c) 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 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).
(e) To provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraphs (a), (b) or (c) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company, the Underwriter or the
Servicer on the grounds of policy or otherwise, the Company, the
Underwriter, or the Servicer shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company, the Underwriter or the Servicer 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 as is appropriate to reflect the
relative benefit received by each of the Company, the Underwriter and
the Servicer; 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, the Underwriter and the Servicer 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, the Underwriter or the Servicer 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 (e), 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, each person who controls the Servicer within the meaning
of either the Act or the Exchange Act shall have the same rights to
contribution as the Servicer and each person who controls the
15
Company within the meaning of either the Act or the Exchange Act, and 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 (e).
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 (e), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
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
(e).
SECTION 9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, the Servicer 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, the Servicer 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 Offered
Certificates. The provisions of Sections 7 and 8 hereof and this Section 9 shall
survive the termination or cancellation of this Agreement.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
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 Offered Certificates, 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 by federal 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 reasonable judgment of the
Underwriter, impracticable to market the Offered Certificates.
SECTION 11. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., Eastern 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 Offered Certificates
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
16
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 11(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., Eastern 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 and one copy of such materials to the Company at the
address specified in Section 12 hereof.
(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 Offered Certificates prior to the date hereof
and if the 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 and one copy of such materials to the
Company at the address specified in Section 12 hereof no later than 10:30
a.m., Eastern 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 11(a) or as contemplated in Section
11(b)(i) constitute all of the materials furnished to prospective investors
by the Underwriter (whether in written, electronic or other format) prior
to the time of delivery thereof to the Company with respect to the Offered
Certificates in accordance with the No-Action Letters, and such
Computational Materials, Collateral Term Sheets and ABS Term Sheets comply
with the requirements of the No-Action Letters;
(iii) except as resulting directly from any Collateral Error, on the
respective dates any such Computational Materials, Collateral Term Sheets
and/or ABS Term Sheets with respect to the Offered Certificates were last
furnished to each prospective investor and on the date of delivery thereof
to the Company pursuant to this Section 11 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) all Computational Materials, Collateral Term Sheets and ABS
Term Sheets 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 Sheets or ABS Term Sheets, is not responsible
for the accuracy thereof and has not authorized the dissemination thereof;
17
(v) all Collateral Term Sheets with respect to the Offered
Certificates 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
(vi) 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 Offered
Certificates (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 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 or
the Servicer 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 to any prospective
investor, and agrees that any Computational Materials, Collateral Term Sheets or
ABS Term Sheets with respect to the Offered Certificates furnished to
prospective investors shall include a disclaimer as contemplated in paragraph
(b)(v) above. The Underwriter agrees that it will not represent to investors
that any Computational Materials, Collateral Term Sheets and/or ABS Term Sheets
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Offered Certificates
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 this Section 11 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 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
18
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 agrees 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 that the Underwriter shall have no obligation to procure
such letter.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notice to the Underwriter
shall be directed to Banc of America Securities LLC, Bank of America Corporate
Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: ; notices to the Company shall be directed to it at BA Residential
Securities, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Associate General Counsel, with a copy to the Treasurer; and notices
to the Servicer shall be directed to Bank of America, N.A., Bank of America
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Associate General Counsel, with a copy to the Treasurer.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriter, the Servicer, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Offered Certificates from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH
REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY
ITS TERMS APPLIES TO THIS AGREEMENT).
SECTION 15. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof.
19
(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.
20
If the foregoing is in accordance with your understanding of our agreement,
please sign this Agreement and return it to us.
Very truly yours,
BA RESIDENTIAL SECURITIES, INC.
By:
---------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
BANC OF AMERICA SECURITIES LLC
By:
---------------------------
Name:
Title:
Solely for purposes of Sections 8 and 9:
BANK OF AMERICA, N.A.
By:
---------------------------
Name:
Title:
21
SCHEDULE I
Offered Certificates: Mortgage Pass Through Certificates, Series 200 - , Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-R, Class
A-LR, Class A-WIO, Class B-1, Class B-2 and Class B-3.
Registration Statement File Number: 333- .
Initial Principal Amount of Offered Certificates:
Initial Class
Class Certificate Balance
------------------- --------------------------
Class A-1 $
Class A-2 $
Class A-3 $
Class A-4 $
Class A-5 (1)
Class A-6 $
Class A-R $
Class A-LR $
Class B-1 $
Class B-2 $
Class B-3 $
(1) The Class A-5 Certificates are Interest Only Certificates and have no Class
Certificate Balance.
Purchase Price: $
Classes of Book-Entry
Certificates: Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-PO, Class B-1,
Class B-2 and Class B-3.
Description of Mortgage Loans: Fixed rate, first mortgage loans having an
aggregate principal balance as of the Cut-Off
Date of $ . The Mortgage Loans are
fixed interest rate mortgage loans secured by
one- to four-family residential properties.
Denominations: The Offered Certificates listed above under
Book-Entry Certificates will be issued in
book-entry form. Each such Class of
Certificates will be evidenced by one or more
certificates registered in the name of Cede &
Co. ("Cede") in the aggregate amount equal to
the Initial Class Certificate Balance of such
Class. Interests in such Classes of Offered
Certificates issued in the name of Cede
(except the Class B-1, Class B-2 and Class
B-3 Certificates) may be purchased by
investors in minimum denominations of $ .
and integral multiples of $ . Interests
in the Class A-PO, Class B-1, Class B-2 and
Class B-3 Certificates may be purchased in
minimum denominations of $ and integral
multiples of $ . The Class A-R and Class
A-LR Certificate will be issued as a single
certificate in a denomination of $ .
Cut-Off Date: , 200 .
I-2
Pass-Through Rate:
Class Rate
------------- --------------------
Class A-1 6.750% per annum
Class A-2 6.750% per annum
Class A-3 6.250% per annum
Class A-4 (1)
Class A-5 (2)
Class A-6 6.750% per annum
Class A-R 6.750% per annum
Class A-LR 6.750% per annum
Class A-WIO (3)
Class A-PO (4)
Class B-1 6.750% per annum
Class B-2 6.750% per annum
Class B-3 6.750% per annum
(1) During the initial Interest Accrual Period, interest will accrue on the
Class A-4 Certificates at a rate of 2.410% per annum. During each Interest
Accrual Period thereafter, interest will accrue on the Class A-4
Certificates at a per annum rate equal to (i) 0.550% plus (ii) LIBOR,
subject to a minimum rate of 0.550% and a maximum rate of 8.500%.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class A-5 Certificates at a rate of 6.090% per annum. During each Interest
Accrual Period thereafter, interest will accrue on the Class A-5
Certificates at a per annum rate equal to (i) 7.950% minus (ii) LIBOR,
subject to a minimum rate of 0.000% and a maximum rate of 8.050%.
(3) The Class A-WIO Certificates are Interest Only Certificates and will not be
entitled to distributions in respect of principal. The Class A-WIO
Certificates will accrue interest on a Notional Amount at a per annum rate
equal to (i) the weighted average of the Net Mortgage Interest Rates of the
Mortgage Loans in such Certificate's Loan Group minus (ii) 6.750%.
(4) The Class A-PO Certificates are principal-only certificates and will not be
entitled to distributions in respect of interest.
I-3
Certificate Ratings:
Class S&P Xxxxx'x
----- --- -------
A-1 AAA Aaa
A-2 AAA Aaa
A-3 AAA Aaa
A-4 AAA Aaa
A-5 AAA Aaa
A-6 AAA Aaa
A-PO AAA Aaa
A-WIO AAA Aaa
A-R AAA None
A-LR AAA None
X-0 Xxxx Xxxx
X-0 Xxxx Xxxx
X-0 None None
I-4
