EXECUTION COPY
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 1997-1
UNDERWRITING AGREEMENT
July 31, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
(for itself and the other Underwriters
named in Schedule I hereto)
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bank of America, FSB (the "Contract Seller"), proposes, subject to the
terms and conditions stated in this Underwriting Agreement ("the Underwriting
Agreement"), to sell to the underwriters named in Schedule I hereto (the
"Underwriters;" PROVIDED, HOWEVER, that if you are the only underwriter named
in Schedule I, then the terms "Underwriter" and "Underwriters" shall refer
solely to you) certain of its BankAmerica Manufactured Housing Contract Trust
II Senior/Subordinate Pass-Through Certificates, Series 1997-1 (the
"Certificates"), as specified in Schedule II hereto (the "Offered
Certificates"), to be issued pursuant to a Pooling and Servicing Agreement
(the "Agreement") to be dated as of July 1, 1997 (the "Cut-off Date"), by and
between Bank of America, FSB, as Contract Seller and Servicer, and The First
National Bank of Chicago, as Trustee (the "Trustee"). The Certificates will
be executed by the Trustee and will evidence undivided interests in the Trust
Fund (as defined in the Agreement) consisting primarily of a pool (the
"Pool") of manufactured housing installment sales contracts and installment
loan agreements (the "Contracts") sold by the Contract Seller to the Trust
Fund pursuant to the Agreement, and listed in an exhibit to the Agreement.
The Certificates are described more fully in the Prospectus (which term is
defined below), which the Contract Seller is furnishing to you.
Section 1. REPRESENTATIONS AND WARRANTIES. The Contract Seller
represents and warrants to, and agrees with, each Underwriter that:
(a) It has caused to be filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-3200) on
Form S-3, as amended by Pre-Effective Amendments Xx. 0, Xx. 0, Xx. 0, Xx. 0
and No. 5 thereto, dated May 16, 1996, May 17, 1996, May 28, 1996,
June 3, 1996 and June 4, 1996, respectively, for the registration under
the Securities Act of 1933, as amended (the "Act"), of the Offered
Certificates, which registration statement has become effective and
copies of which have heretofore been delivered to you, and pursuant to
Rule 424 a preliminary prospectus supplement dated July 29, 1997, a copy
of which has been delivered to you. It proposes to cause to be filed
with the Commission pursuant to Rule 424 under the Act a final
prospectus supplement, dated the date specified in Schedule II hereto,
relating to the Offered Certificates and the method of distribution
thereof, and has previously advised you of all further information
(financial and other) with respect to the Offered Certificates set forth
therein. Such registration statement, including the exhibits thereto
and any documents incorporated by reference therein, as amended or
incorporated by reference as of the date hereof, and the information
deemed to be part thereof pursuant to Rule 430A(b) under the Act, is
hereinafter called the "Registration Statement;" the prospectus included
therein (including all documents incorporated by reference therein), in
the form in which it will be filed with the Commission pursuant to Rule
424 under the Act, is hereinafter called the "Base Prospectus;" the
supplement to the Base Prospectus, in the form in which it will be filed
with the Commission pursuant to Rule 424 of the Act, is hereinafter
called the "Prospectus Supplement;" and the Base Prospectus and the
Prospectus Supplement together are hereby called the "Prospectus." Any
preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 402(a) or Rule 424 is hereinafter called a
"Preliminary Prospectus Supplement." It will not, without your prior
consent, file any other amendment to the Registration Statement or make
any change in the Base Prospectus or the Prospectus Supplement until
after the period in which a prospectus is required to be delivered to
purchasers of the Offered Certificates under the Act. All references in
this Underwriting Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and
include the filing of any document under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The Contract Seller meets the
requirements for use of Form S-3 under the Act at all relevant times.
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to
Rule 424 under the Act, when, after the date hereof and prior to the
Closing Date (as defined in Schedule II hereto), any amendment to the
Registration Statement becomes effective, when any supplement to the
Prospectus Supplement is filed with the Commission, and at the Closing
Date, (i) the Registration Statement, as amended as of any such time, and
the Prospectus, as amended or supplemented as of any such time, complied or
will comply in all material
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respects with the applicable requirements of the Act and the rules
thereunder and (ii) the Registration Statement, as amended as of any
such time, did not and will not contain any untrue statement of a
material fact and did not and will not omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented
as of any such time, did not and will not contain an untrue statement of
a material fact and did not and will not omit 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; PROVIDED,
HOWEVER, it makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto made in
reliance upon and in conformity with written information furnished to
the Contract Seller by you, or by any Underwriter through you,
specifically for use in the preparation thereof.
(c) It is a federal savings bank, duly organized and validly existing
under the laws of the United States, with full power and authority to
conduct its business as currently operated, and to enter into and perform
its obligations under this Underwriting Agreement and the Agreement and it
is conducting its manufactured housing business so as to comply in all
material respects with all applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting such business
and where the failure to so comply would have a material adverse effect on
the transactions contemplated hereunder or its ability to perform its
obligations under the Agreement.
(d) It is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for
any additional information, (ii) 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 or (iii) any
notification with respect to the suspension of the qualification of the
Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) At or prior to the Closing Date, it will have entered into the
Agreement; it has duly authorized, executed and delivered this Underwriting
Agreement and the Agreement; when delivered by the Contract Seller, this
Underwriting Agreement and the Agreement will have been duly authorized,
executed and delivered by it and will constitute a valid and binding
agreement of the Contract Seller, enforceable against it in accordance with
its terms, except that the enforceability thereof may be subject to:
(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter
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in effect relating to creditors' rights generally; (ii) general
principles of equity regardless of whether enforcement is sought in a
proceeding of equity or at law; and (iii) limitations of public policy
under applicable securities laws as such relate to the enforceability of
rights to indemnity under the Agreement or this Underwriting Agreement.
(f) The Certificates and the Agreement conform in all material
respects to the descriptions thereof contained in the Prospectus. As of
the Closing Date, the Offered Certificates will be duly and validly
executed and delivered by it, and will, when duly and validly authenticated
by the Trustee and delivered to you in accordance with this Underwriting
Agreement and the Agreement, be entitled to the benefits of the Agreement.
(g) As of the Closing Date, the representations and warranties of the
Contract Seller set forth in Section 3.01 of the Agreement will be true and
correct in all material respects.
(h) Neither the issuance and sale of the Offered Certificates, nor
the consummation by the Contract Seller of any other transactions
contemplated in this Underwriting Agreement, nor the fulfillment of the
terms of the Agreement or this Underwriting Agreement will result in the
breach of any term or provision of the articles of association or by-laws
of the Contract Seller or conflict with, result in a material breach,
violation or acceleration of or constitute a default under, the terms of
any indenture or other agreement or instrument to which it or any of its
subsidiaries is a party or by which it is bound, or any statute, order or
regulation applicable to the Contract Seller or any of its subsidiaries of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Contract Seller or any of its subsidiaries.
Neither the Contract Seller nor any of its subsidiaries is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects the ability of the Contract Seller to perform its
obligations under the Agreement.
(i) There are no actions or proceedings against, or investigations
of, the Contract Seller pending, or, to the knowledge of the Contract
Seller, threatened, before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Underwriting Agreement, the
Agreement or the Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by
this Underwriting Agreement or the Agreement, (iii) which are reasonably
likely to be adversely
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determined and which might materially and adversely affect the
performance by the Contract Seller of its obligations under, or the
validity or enforceability of, this Underwriting Agreement, the
Agreement or the Certificates or (iv) seeking to affect adversely the
federal income tax attributes of the Offered Certificates described in
the Prospectus.
(j) There has not been any material adverse change in its business,
operations, financial condition, properties or assets since the date of its
latest quarterly financial statement which would have a material adverse
effect on its ability to perform its obligations under the Agreement.
(k) Any taxes, fees and other governmental charges in connection with
the execution and delivery of this Underwriting Agreement and the Agreement
and the execution, delivery and sale of the Offered Certificates have been
or will be paid at or prior to the Closing Date.
(l) Immediately prior to the assignment of the Contracts sold by it
to the Trustee, as contemplated by the Agreement, it will have the power
and authority to sell such Contracts to the Trustee, and upon the execution
and delivery of the Agreement by the Trustee, the Trustee will have
acquired all of its right, title and interest in and to the Contracts.
(m) Neither it nor the Trust Fund is, and neither the issuance and
sale of the Certificates nor the activities of the Trust Fund pursuant to
the Agreement will cause the Contract Seller or the Trust Fund to be an
"investment company" or under the control of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended.
Section 2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Contract Seller agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Contract Seller, the percentage
of the Offered Certificates set forth opposite each such Underwriter's name in
Schedule I hereto. The purchase price for the Offered Certificates as a
percentage of the principal balance of the Contracts as of the Cut-off Date is
set forth in Schedule II hereto. There will be added to the purchase price of
the Offered Certificates interest in respect of the Offered Certificates at the
pass-through rate applicable to the Offered Certificates as specified in
Schedule II from July 10, 1997 to but not including the Closing Date.
Section 3. DELIVERY AND PAYMENT. Delivery of and payment for the
Offered Certificates shall be made at the date, location and time of delivery
set forth in Schedule II hereto, or such later date as the Underwriters shall
designate, which date
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and time may be postponed by agreement between the Underwriters and the
Contract Seller or as provided in Section 9 hereof (such date, location and
time of delivery and payment for the Offered Certificates being herein called
the "Closing Date"). Delivery of the Offered Certificates shall be made to
the Underwriters against payment by the Underwriters of the purchase price
thereof to or upon the order of the Contract Seller in immediately available
funds as specified in Schedule II hereto. The Offered Certificates to be so
delivered shall be in definitive, fully registered form, unless otherwise
agreed, in such denominations and registered in the name of Cede & Co., as
nominee of The Depository Trust Company, unless otherwise specified by the
Contract Seller in writing not less than three full business days in advance
of the Closing Date.
The Contract Seller agrees to have the Offered Certificates available for
inspection and checking by the Underwriters in New York, New York, not later
than 1:00 p.m. on the business day prior to the Closing Date.
Section 4. OFFERING BY UNDERWRITERS. It is understood that the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
Section 5. AGREEMENTS. The Contract Seller agrees with the
Underwriters that:
(a) It will prepare a supplement to the Base Prospectus setting forth
the amount of Offered Certificates covered thereby and the terms thereof
not otherwise specified in the Base Prospectus, the expected proceeds to
the Contract Seller from the sale of such Offered Certificates, and such
other information as the Underwriters and the Contract Seller may deem
appropriate in connection with the offering of such Offered Certificates.
It will promptly advise the Underwriters (i) when the Prospectus shall have
been filed or transmitted to the Commission for filing pursuant to Rule
424, (ii) when any amendment to the Registration Statement shall have
become effective, (iii) of any request by the Commission for any amendment
to the Registration Statement or the Prospectus or for any additional
information, (iv) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has become or will
become effective, (v) 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, (vi) of the
receipt by the Contract Seller 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, and (vii) of the occurrence of any event that would cause the
Registration
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Statement, as then in effect, to contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Contract Seller will not file any amendment to the Registration
Statement or supplement to the Prospectus unless it has furnished you
with a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object until
after the period in which a prospectus is required to be delivered to
purchasers of the Offered Certificates under the Act. Subject to the
foregoing sentence, it will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the
Act by any means reasonably contemplated to result in compliance with
said Rule. It 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) 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 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 Prospectus to comply with the Act or
the rules under the Act, it will promptly prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, if such amendment or supplement is
required to be contained in a post-effective amendment to the Registration
Statement, it will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
(c) It will furnish to the Underwriters and counsel for the
Underwriters, without charge, a signed copy of the Registration Statement
and each amendment thereto (including exhibits thereto) and as many copies
of the Registration Statement and each amendment thereto (without exhibits
thereto) as the Underwriters may reasonably request and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of the Base Prospectus, the Preliminary Prospectus
Supplement, if any, and the Prospectus Supplement and any amendments and
supplements thereto as the Underwriters may reasonably request.
(d) So long as the Offered Certificates shall be outstanding, the
Contract Seller will cause the Servicer to deliver to the Underwriters the
annual statement as to compliance and the annual statement of a firm of
independent
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public accountants, furnished to the Trustee by the Servicer pursuant to
Sections 4.20 and 4.21 of the Agreement, as soon as such statements are
furnished to the Trustee.
(e) It will furnish such information, execute such instruments and
take such action, if any, as may be required to qualify the Offered
Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate, and will maintain such qualification in effect
so long as required for the distribution of the Offered Certificates;
PROVIDED, HOWEVER, that it shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
that would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) It will pay all costs and expenses in connection with the
transactions contemplated hereby, including, but not limited to, the fees
and disbursements of its counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Agreement and the Offered
Certificates; accounting fees and disbursements; the costs and expenses in
connection with the qualification or exemption of the Offered Certificates
under state securities or blue sky laws (including filing fees but not fees
and disbursements of counsel in connection therewith) in connection with
the preparation of any blue sky survey and in connection with any
determination of the eligibility of the Offered Certificates for investment
by institutional investors; the expenses of printing any such blue sky
survey; the cost and expenses in connection with the preparation, printing
and filing of the Registration Statement (including exhibits thereto), the
Base Prospectus, any Preliminary Prospectus Supplement and the Prospectus
Supplement, the preparation and printing of this Underwriting Agreement and
the furnishing to the Underwriters of such copies of each Preliminary
Prospectus Supplement and Prospectus Supplement as the Underwriters may
reasonably request and the fees of rating agencies. Except as provided in
Section 7 hereof, the Underwriters shall be responsible for paying all
costs and expenses incurred by them in connection with their purchase and
sale of the Offered Certificates, including the fees of counsel to any
Underwriter.
Section 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Underwriting Agreement shall be subject to the accuracy of the
representations and warranties on the part of the Contract Seller contained
herein as of the date hereof and the Closing Date, the accuracy of the
statements of the Contract Seller made in any officer's certificate pursuant to
the provisions hereof, the performance
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by the Contract Seller of its obligations hereunder, and the following
additional conditions with respect to the Offered Certificates:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn; no
proceedings for that purpose shall have been instituted or, to the best
knowledge of the Contract Seller, threatened; and the Prospectus Supplement
shall have been filed or transmitted for filing with the Commission in
accordance with Rule 424 under the Act.
(b) The Contract Seller shall have delivered to you a certificate,
dated the Closing Date, of any Vice President or any Assistant Secretary
thereof to the effect that the signer of such certificate has carefully
examined this Underwriting Agreement, the Registration Statement and the
Prospectus and that: (i) the representations and warranties made by it in
this Underwriting Agreement are true and correct in all material respects
at and as of the Closing Date with the same effect as if made on the
Closing Date, (ii) it 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, (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the knowledge of such signer, threatened, and
(iv) nothing has come to such signer's attention that would lead such
signer to believe that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) The Underwriters shall have received from Xxxxxxxx & Xxxxxxxx
LLP, counsel for the Contract Seller, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Registration Statement has become effective under the
Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness thereof has been issued and not withdrawn and, to
the knowledge of such counsel, no proceedings for that purpose have
been instituted or are pending or threatened under the Act.
(ii) The Registration Statement, as of its effective date, and
the Prospectus, as of the date thereof, complied as to form in all
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material respects with the requirements of the Act and the rules
thereunder (except as to the financial statements, schedules and other
numerical, financial and statistical data contained therein, as to
which such counsel need express no opinion).
(iii) The conditions to use by the Contract Seller of a
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus and there are no
contracts or documents known to such counsel, based on an inquiry of
representatives of the Contract Seller, of a character required to be
described in the Prospectus or to be filed as exhibits to the
Registration Statement pursuant to the Act or the regulations
thereunder which have not been so described or filed.
(iv) The Agreement constitutes a valid and binding agreement of
the Contract Seller, enforceable in accordance with its terms. This
Underwriting Agreement constitutes a valid and binding agreement of
the Contract Seller.
(v) The Certificates have been duly authorized, executed and
delivered by the Contract Seller and, assuming due authentication by
the Trustee, when issued and paid for in accordance with the terms of
this Underwriting Agreement and the Agreement, will be duly and
validly issued and outstanding and will be entitled to the benefits of
the Agreement.
(vi) The Certificates and the Agreement conform in all material
respects to the descriptions thereof contained under the heading
"Description of the Certificates" in the Prospectus.
(vii) The statements contained in the Base Prospectus and the
Prospectus Supplement, as the case may be, under the headings "Certain
Federal Income Tax Consequences," "ERISA Considerations," "Tax-Exempt
Investors," "Legal Investment" and "Other Considerations," to the
extent that they constitute matters of law or legal conclusions with
respect thereto, are correct in all material respects, under the
assumptions stated therein and under existing law.
(viii) Based solely on the representations and warranties of
the Contract Seller in the Agreement, the Offered Certificates
designated on Schedule II as Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5,
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Class A-6, Class A-7, Class A-8, Class A-9 and Class M are, and will
be so long as such Offered Certificates are rated in one of the two
highest rating categories by at least one nationally recognized
statistical rating organization, "mortgage related securities," as
defined in Section 3(a)(41) of the Exchange Act.
(ix) The issuance and sale of the Offered Certificates to the
Underwriters pursuant to this Underwriting Agreement, the compliance
by it with the other provisions of this Underwriting Agreement and the
Agreement, and the consummation of the other transactions herein and
therein contemplated do not, under any statute, regulation or rule of
general applicability, require the consent, approval, authorization,
order, registration or qualification of or with any court or
governmental authority, except as may be required under the Act or
other federal or state securities laws, or any filings of UCC
financing statements in respect of the assignment of the Contracts to
the Trustee pursuant to the Agreement that have not yet been completed
and such other approvals as have been obtained; and neither the sale
of the Contracts nor the execution and delivery of the Agreement, nor
the consummation of any other transactions contemplated therein, nor
the fulfillment of the terms of the Agreement will conflict with or
violate any statute currently applicable to it, or to such counsel's
knowledge, any rule or regulation currently applicable to it of any
regulatory body, administrative agency or governmental body having
jurisdiction over it.
(x) Under existing law, assuming (i) the making of a valid
election, (ii) compliance with the Agreement, and (iii) compliance
with any changes in the law, including any amendments to the Internal
Revenue Code of 1986, as amended (the "Code") or applicable Treasury
regulations thereunder, the Trust Fund will be classified for federal
income tax purposes as a "real estate mortgage investment conduit"
("REMIC") within the meaning of Code Section 860D, the Series 1997-1
Regular Certificates will be treated as the "regular interest" in such
REMIC and the Class R Certificates will be treated as the single class
of "residual interest" in such REMIC.
(xi) The Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and the Trust Fund created
by the Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
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Such opinion (a) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by
officers of, the parties to this Underwriting Agreement and the Agreement,
(b) may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto (other
than the Contract Seller), and (c) may be qualified as an opinion only as to
the laws to the State of California and the United States of America.
In addition, Xxxxxxxx & Xxxxxxxx LLP shall state that, in the course of
its participation in the registration of the Offered Certificates, nothing
has come to such counsel's attention that has caused it to believe that (x)
either the Registration Statement (which for purposes of this paragraph shall
not be deemed to include any Exhibits filed therewith), at the time it became
effective, or any post-effective amendment thereto, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (y) the Prospectus, at the date of the
Prospectus Supplement and at the Closing Date, included or includes an untrue
statement of a material fact or omitted 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; it being understood
that such counsel need express no opinion as to the financial statements or
any other financial, numerical, statistical or quantitative data contained in
the Registration Statement or the Prospectus or any amendment or supplement
thereto.
(d) The Underwriters shall have received from Xxxxxx X. Xxxxxxxxxx,
counsel for the Contract Seller, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) It is a federal savings bank, duly organized and in good
standing under the laws of the United States, has full power and
authority to conduct its business as described in the Prospectus, to
enter into and perform its obligations under this Underwriting
Agreement and the Agreement and to consummate the transactions
contemplated hereby and thereby, is duly qualified to do business and
is in good standing in each jurisdiction in which the character of
the business transacted by it and its type of organization requires
such qualification and in which the failure to so qualify would have
a material adverse effect on its ability to consummate the
transactions contemplated by this Underwriting Agreement or the
Agreement or to perform its obligations under the Agreement and owns
or possesses or has obtained all applicable and material governmental
licenses, permits, consents,
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orders, approvals and other authorizations necessary to carry on its
manufactured housing business as described in the Prospectus, and is
conducting its manufactured housing business so as to comply in all
material respects with all applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting such
business and in which the failure to so comply would have a material
adverse effect on the transactions contemplated under this
Underwriting Agreement and the Agreement and its ability to perform
its obligations under the Agreement.
(ii) It has duly authorized, executed and delivered this
Underwriting Agreement and the Agreement.
(iii) Neither the sale of the Contracts nor the execution and
delivery of the Agreement, nor the consummation of any other
transactions contemplated therein, nor the fulfillment of the terms of
the Agreement will conflict with or violate, result in a breach of or
constitute a default under any terms or provisions of its articles of
incorporation or charter, as applicable, or its by-laws, or to such
counsel's knowledge, any order, currently applicable to it of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it, or the terms of any material indenture or
other material agreement or instrument known to such counsel which it
is a party to or by which it is bound.
(iv) There is no pending or, to such counsel's knowledge,
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving it required to
be disclosed in the Prospectus which is not adequately disclosed in
the Prospectus, and there is no contract or other document required to
be described in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required.
(v) To the best of such counsel's knowledge, the issuance and
sale of the Offered Certificates to the Underwriters pursuant to this
Underwriting Agreement, the compliance by it with the other provisions
of this Underwriting Agreement and the Agreement, and the consummation
of the other transactions herein and therein contemplated do not,
under any decision, order, decree or judgment of any judicial or other
governmental body specifically applicable to it, require the consent,
approval, authorization, order, registration or qualification of or
with any court or governmental authority.
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Such opinion (a) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by
officers of, the parties to this Underwriting Agreement and the Agreement,
(b) may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto (other
than the Contract Seller), and (c) may be qualified as an opinion only as to
the laws to the State of California and the United States of America.
(e) The Underwriters shall have received from Xxxxxxxx & Xxxxxxxx
LLP, counsel to the Contract Seller, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that (i) the Agreement creates a valid
security interest in favor of the Trustee in the Contracts and the
proceeds thereof and (ii) the security interest in favor of the Trustee
in the Contracts and the proceeds thereof is a first priority perfected
security interest.
(f) The Underwriters shall have received from Xxxxxxxx & Xxxxxxxx
LLP, counsel to the Contract Seller, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that, should the Federal Deposit Insurance
Corporation (the "FDIC") be appointed as a receiver or conservator for the
Contract Seller and should a court characterize the transfers of the
Contracts and the proceeds thereof by the Contract Seller pursuant to the
Agreement as a transfer of collateral as security for the obligations of
the Contract Seller rather than as a sale, subject to the matters
discussed below, no statute, case or regulation would cause the security
interest of the Trustee for the benefit of the Certificateholders in the
Contracts and the proceeds thereof to be subject to avoidance by the FDIC
as receiver or conservator of the Contract Seller, and the security
interest created by the Agreement would be enforceable by the Trustee
notwithstanding the appointment of the FDIC as receiver or conservator
for the Contract Seller.
Such opinion (a) may express its reliance as to factual matters on
certificates of government and agency officials and the representations
and warranties made by, and on certificates or other documents furnished
by officers of, the parties to this Underwriting Agreement and the
Agreement, (b) may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties
thereto (other than the Contract Seller), and (c) may be qualified as an
opinion only as to the laws to the State of California and the United
States of America.
14
(g) The Underwriters shall have received from counsel admitted in
the State of Illinois reasonably satisfactory to the Underwriters, a
favorable opinion, dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters, to the effect that the Trust
Fund will be treated as a REMIC for Illinois tax purposes and will not be
subject to Illinois income or franchise tax other than such tax, if any,
as may be imposed on amounts taxable for federal income tax purposes.
(h) The Underwriters shall have received from Xxxxx & Wood LLP,
counsel for the Underwriters, a favorable opinion, dated the Closing Date
and satisfactory in form and substance to the Underwriters.
(i) The Underwriters shall have received from Ernst & Young
certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, to the effect that they have performed certain
specified procedures, as a result of which they determined that the
information of an accounting, financial or statistical nature set forth
in the Base Prospectus under the headings "The Sellers" and "Prepayment
and Yield Considerations"and in the Prospectus Supplement under the
headings "The Seller" and "Prepayment and Yield Considerations" agrees
with the records of the Contract Seller or the Servicer, as the case may
be.
(j) The Underwriters shall have received from Ernst & Young
certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, to the effect that they have performed certain
specified procedures and computations, as a result of which they have
determined that the information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement under the
headings "The Contract Pool," "The Seller" and "Prepayment and Yield
Considerations" agrees with such computations.
(k) The Underwriters shall have received (i) from Xxxxx'x Investors
Service, Inc., a rating letter assigning a rating of Aaa to the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7,
Class A-8 and Class A-9 Certificates, a rating of at least Aa3 to the
Class M Certificates, a rating of at least Baa2 to the Class B-1
Certificates and a rating of at least Ba2 to the Class B-2 Certificates;
and (ii) from Fitch Investors Service, L.P., a rating letter assigning a
rating of AAA to the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8 and Class A-9 Certificates, a
rating of at least AA- to the Class M Certificates, a rating of BBB to the
Class
15
B-1 Certificates and a rating of BB to the Class B-2 Certificates, which
ratings shall not have been withdrawn.
(l) The Underwriters shall have received from counsel to the
Trustee, a favorable opinion dated the Closing Date and satisfactory in
form and substance to counsel for the Underwriters, to the effect that:
(i) The Trustee (a) is a national banking association duly
organized, validly existing and in good standing under the laws of
the State of Illinois and the laws of the United States, (b) is duly
qualified to exercise corporate trust powers under the laws of the
United States and (c) is duly eligible and qualified to act as
Trustee under the Agreement.
(ii) The Agreement has been duly authorized, executed and
delivered by the Trustee in its individual capacity and the Agreement
has been duly authorized, executed and delivered by the Trustee in
its capacity as Trustee of BankAmerica Manufactured Housing Contract
Trust II, Senior/Subordinate Pass-Through Certificates, Series
1997-1.
(iii) The Agreement, assuming due authorization, execution and
delivery of such document by all other parties thereto, constitutes a
legal, valid and binding agreement of the Trustee, except as
enforceability thereof may be limited by bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar laws
affecting the enforcement of rights of creditors against the Trustee
generally, as such laws would apply in the event of bankruptcy,
insolvency, liquidation or reorganization or any moratorium or
similar occurrence affecting the Trustee, and the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iv) No consent, approval, authorization or order of any
governmental agency or body is required for the Trustee's acceptance
and execution of the trusts contemplated by the Agreement.
(v) The actions required of the Trustee under the Agreement,
the consummation of any other transactions contemplated in the
Agreement and the fulfillment of the terms of the Agreement do not
conflict with or result in a breach or violation of any term or
provision of, or constitute a default under any agreement or any
statute or regulation governing the Trustee.
16
(vi) Assuming due authorization, execution and delivery of the
Agreement by the Contract Seller, the Servicer and the Trustee, and
assuming the Trustee's receipt of the initial trust estate referenced
in Section 2.01 of the Agreement, a trust has been duly created and
validly exists under the laws of the State of Illinois, the terms of
which are set forth in the Agreement.
(vii) The Certificates have been duly authenticated and
delivered by the Trustee.
(m) There shall not have been any material adverse change in the
Contract Seller's business, operations, financial condition, properties or
assets since the date of its latest quarterly financial statement, which
change would have a material adverse effect on its ability to perform its
obligations under the Agreement.
(n) The Underwriters shall have received from Xxxxxxxx & Xxxxxxxx
LLP, a letter to the effect that the Underwriters may rely upon the
opinion rendered by Xxxxxxxx & Xxxxxxxx LLP to any Rating Agency in
connection with the transactions contemplated herein.
(o) All proceedings in connection with the transactions contemplated
by this Underwriting Agreement, and all documents incident hereto and
thereto, shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, and the Underwriters and counsel for the
Underwriters shall have received such information, certificates and
documents as they may reasonably request.
Section 7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of any
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6
hereof is not satisfied or because of any refusal, inability or failure on
the part of the Contract Seller to perform any agreement herein or therein or
comply with any provision hereof or thereof, other than by reason of a
default by any of the Underwriters, the Contract Seller will reimburse the
Underwriters severally upon demand for all reasonable and documented
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of such Offered Certificates.
17
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Contract Seller will indemnify and hold harmless each
Underwriter and its respective directors, officers, agents and employees
against claims, damages, or liabilities, joint or several, to which each such
Underwriter or director, officer, agent or employee thereof may become
subject, under the Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in any part of the Registration Statement when such part became effective, or
in the Registration Statement, any Preliminary Prospectus Supplement, the
Prospectus, or any amendment 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 not
misleading, and will reimburse each Underwriter and their respective
directors, officers, agents and employees for any reasonable and documented
legal or other expenses incurred by such Underwriter or director, officer,
agent or employee thereof, as incurred, in connection with investigating or
defending against such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, (i) that the Contract Seller shall 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 an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Contract Seller by you, or by any Underwriter
through you, specifically for use therein, and (ii) such indemnity with
respect to any Preliminary Prospectus or Preliminary Prospectus Supplement
shall not inure to the benefit of any Underwriter (or any person controlling
any 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 Prospectus (or the Prospectus as
amended or supplemented) 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 such Preliminary Prospectus or Preliminary Prospectus Supplement
was corrected in the Prospectus (or the Prospectus as amended or
supplemented).
(b) Each Underwriter, severally but not jointly, will indemnify and
hold harmless the Contract Seller and its directors, officers, agents and
employees against any losses, claims, damages, or liabilities to which the
Contract Seller or director, officer, agent or employee thereof may become
subject, under the Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective, or in any
Preliminary Prospectus Supplement, the
18
Prospectus, or any amendment 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 not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made therein in reliance upon and in conformity with written information
furnished to the Contract Seller by you, or by such Underwriter through you,
specifically for use therein, and will reimburse the Contract Seller and its
respective directors, officers, agents and employees for any reasonable and
documented legal or other expense incurred by the Contract Seller or
director, officer, agent or employee thereof, as incurred, in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
Each Underwriter, severally but not jointly, shall indemnify and
hold harmless the Contract Seller and its respective directors, officers,
agents and employees against any and all losses, claims, damages or
liabilities, joint or several, to the extent that such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement of a material fact contained in any Collateral
Term Sheet, Structural Term Sheet or Computational Materials (or based on an
omission to state any material fact necessary to make any statement contained
therein not misleading), when read together with the Prospectus (assuming for
this purpose that the Prospectus does not omit to state any material fact
necessary to make any statement contained in the Prospectus not misleading),
furnished by such Underwriter to the Contract Seller specifically for
inclusion in a current report on Form 8-K to be filed by or on behalf of the
Contract Seller on or about July 31, 1997 and such Underwriter shall in each
case reimburse the Contract Seller and its respective directors, officers,
agents and employees for any reasonable and documented legal or other
expenses incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that such
Underwriter shall not be liable in any such case to the extent that any such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished by the Contract Seller to such Underwriter in respect of the
Contracts. Such Underwriter's liability under this Section 8(b) shall be in
addition to any liability that such Underwriter may otherwise have (arising
from such statement or omission). Such Underwriter confirms that the
Collateral Term Sheets, Structural Term Sheets and Computational Materials so
furnished to the Contract Seller constitute all the Collateral Term Sheets,
Structural Term Sheets and Computational Materials furnished by such
Underwriter to prospective purchasers of the Offered Certificates.
Computational Materials are computer-generated tables and/or charts
displaying, with respect to any class or classes of Certificates, any of the
following: yield; average life; duration; expected maturity; interest rate
sensitivity; loss sensitivity; cash flow characteristics; background
information regarding the Contracts; the proposed
19
structure; decrement tables; or similar information (tabular or otherwise) of
a statistical, mathematical, tabular or computational nature. The terms
"Collateral Term Sheet" and "Structural Term Sheet" shall have the respective
meanings assigned to them in the February 13, 1995 letter of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx on behalf of the Public Securities Association
(which letter, and the SEC staff's response thereto, were publicly available
February 17, 1995). The term "Collateral Term Sheet," as used herein, shall
also include any subsequent collateral term sheet that reflects a substantive
change in the information presented.
(c) 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 to so 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 except to the extent that the
failure of the indemnified party to notify the indemnifying party prejudices
the rights of the indemnifying party. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party 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 satisfactory
to such indemnified party (which may be counsel representing the indemnifying
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 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 (in addition to local counsel), approved by the Underwriters
in the case of Subsection (a) of this Section 8, representing the indemnified
parties under such Subsection (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the
20
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).
In the event a party settles any claim or action for which it would otherwise
be indemnified against pursuant to Section 8 without the consent of the
indemnifying party, such indemnified party shall waive any rights to
indemnification hereunder in connection with such claim or action; provided,
however, the indemnified party may settle such claim or action without the
consent of the indemnifying party and without waiving its rights to
indemnification if the indemnified party acts in accordance with the advice
of separate counsel engaged in accordance with this Subsection (c).
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
Subsection (a) or (b) above, then the Contract Seller and each indemnifying
Underwriter shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages, or liabilities
referred to in Subsection (a) or (b) above, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Contract Seller
on the one hand and the Underwriters on the other from the offering of the
Offered Certificates, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above, but
also the relative fault of the Contract Seller on the one hand and the
Underwriters on the other in connection with the statement or omissions that
resulted in such losses, claims, damages, or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Contract Seller on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the
offering of the Offered Certificates (before deducting expenses) received by
the Contract Seller bear to the total compensation and profit (before
deducting expenses) received or realized by the Underwriters from the
purchase and resale, or underwriting, of the Offered Certificates. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Contract Seller, on the one hand, or the Underwriters, on the
other, and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such untrue statement or omission. The
Contract Seller, on the one hand, and the Underwriters, on the other, agree
that it would not be just and equitable if contributions pursuant to this
Subsection (d) were to be determined by PRO RATA allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account the equitable considerations
referred to in the first sentence of this Subsection (d). The amount
21
paid by an indemnified party as a result of the losses, claims, damages, or
liabilities referred to in the first sentence of this Subsection (d) shall be
deemed to include any reasonable and documented legal or other expense
incurred by such indemnified party in connection with investigating or
defending against any action or claim which is the subject of this Subsection
(d). Notwithstanding the provisions of this Subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which
(x) the total price at which the Offered Certificates underwritten by it and
distributed to the public were offered to the public exceeds (y) the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Subsection (d) to contribute shall be
several in proportion to their respective underwriting obligations and not
joint; provided that in the case of the indemnification provided in the
second paragraph of Subsection (b), only the Underwriter furnishing the
Collateral Term Sheets, Structural Term Sheets or Computational Materials, as
the case may be, that are the subject of such indemnification shall
contribute in respect thereof pursuant to this Subsection (d).
(e) The obligations of the Contract Seller under this Section 8
shall be in addition to any liability which the Contract Seller may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act or the
Exchange Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability that the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Contract Seller (including any person who, with his consent,
is named in the Registration Statement as about to become a director of the
Contract Seller), to each officer of the Contract Seller who has signed the
Registration Statement and to each person, if any, who controls the Contract
Seller within the meaning of the Act or the Exchange Act.
Section 9. SUBSTITUTION OF UNDERWRITERS. If any Underwriter shall
fail to take up and pay for the amount of the Offered Certificates agreed by
such Underwriter to be purchased under this Underwriting Agreement upon
tender of such Offered Certificates in accordance with the terms hereof, and
the amount of the Offered Certificates not purchased does not aggregate more
than 10% of the total amount of the Offered Certificates set forth in
Schedule I hereto, the remaining Underwriters shall be obligated to take up
and pay for the Offered Certificates that the withdrawing or defaulting
Underwriter agreed but failed to purchase.
22
This Underwriting Agreement shall terminate if (i) any Underwriter shall
fail to take up and pay for the amount of the Offered Certificates agreed by
such Underwriter to be purchased under this Underwriting Agreement (such
Underwriter being a "Defaulting Underwriter") upon tender of such Offered
Certificates in accordance with the terms hereof, (ii) the amount of the
Offered Certificates not purchased aggregates more than 10% of the total
amount of the Offered Certificates set forth in Schedule I hereto, and (iii)
arrangements satisfactory to the remaining Underwriters and the Contract
Seller for the purchase of such Offered Certificates by other persons are not
made within 36 hours thereafter. In the event of any such termination, the
Contract Seller shall not be under any liability to any Underwriter (except
to the extent provided in Section 5(f) and Section 8 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Underwriting Agreement, to purchase the
amount of the Offered Certificates which such Underwriter agreed to purchase
hereunder) be under any liability to the Contract Seller (except to the
extent provided in Section 8 hereof). Nothing herein shall be deemed to
relieve any Defaulting Underwriter from any liability it may have to the
Contract Seller or any other Underwriter by reason of its failure to take up
and pay for Offered Certificates as agreed to by such Defaulting Underwriter.
Section 10. TERMINATION. Notwithstanding anything herein contained,
this Underwriting Agreement may be terminated in the absolute discretion of
the Underwriters, by written notice given to the Contract Seller, if after
the execution of this Underwriting Agreement and prior to the delivery and
payment for all Offered Certificates (i) there has occurred any material
adverse change in the condition (financial or otherwise), earnings, business
or properties of the Contract Seller or BankAmerica Corporation, and their
respective subsidiaries, taken as a whole, the effect of which in the
reasonable judgment of the Underwriters materially impairs the investment
quality of the Offered Certificates; (ii) trading generally shall have been
suspended or materially limited on or by the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities; or (iv) there
shall have occurred any outbreak or material escalation of hostilities in
which the United States is involved, and declaration of war by Congress or
any other substantial national or international calamity or emergency if, in
the reasonable judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impracticable to
proceed with completion of the sale and payment for the Offered Certificates
on the terms specified in this Underwriting Agreement and the Prospectus
Supplement.
Section 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
23
Contract Seller or its officers and the Underwriters set forth in or made
pursuant to this Underwriting Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, the
Contract Seller 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 Section 7 and 8 hereof shall
survive the termination or cancellation of this Underwriting Agreement.
Section 12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be
mailed, delivered, telegraphed or telecopied and confirmed to them at the
addresses set forth at the beginning of this Underwriting Agreement,
Attention: General Counsel; if sent to the Contract Seller or the Servicer,
will be mailed, delivered, telegraphed or telecopied and confirmed to it at
the following address: BankAmerica Housing Services, an unincorporated
division of Bank of America, FSB, 00000 Xxxxxx Xxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Manager, Investor Servicing, with copies to Bank
of America National Trust and Savings Association, Corporate Treasury Capital
Markets Group, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx and to Legal
Department 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, Attention:
Assistant General Counsel, Corporate Advice Group.
Section 13. SUCCESSORS. This Underwriting Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to
in Section 8 hereof, and their successors and assigns, and no other person
will have any right or obligation hereunder.
Section 14. APPLICABLE LAW; COUNTERPARTS. This Underwriting
Agreement will be governed by and construed in accordance with the laws of
the State of New York without giving effect to the provisions thereof
concerning conflict of laws. This Underwriting Agreement may be executed in
any number of counterparts, each of which shall for all purposes be deemed to
be an original and all of which shall together constitute but one and the
same instrument.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Contract Seller and the Underwriters.
Very truly yours,
BANK OF AMERICA, FSB
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
Accepted at New York, New York
as of the date first written
above.
XXXXXX XXXXXXX & CO., INCORPORATED,
for itself and the other Underwriters
named on Schedule I hereto
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Principal
------------------------------
SCHEDULE I
Amount of Series 1997-1,
Class A-1 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $12,750,000
BANCAMERICA SECURITIES, INC. $12,750,000
Amount of Series 1997-1,
Class A-2 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $9,000,000
BANCAMERICA SECURITIES, INC. $9,000,000
Amount of Series 1997-1,
Class A-3 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $10,250,000
BANCAMERICA SECURITIES, INC. $10,250,000
Amount of Series 1997-1,
Class A-4 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $14,750,000
BANCAMERICA SECURITIES, INC. $14,750,000
I-1
Amount of Series 1997-1,
Class A-5 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $7,150,000
BANCAMERICA SECURITIES, INC. $7,150,000
Amount of Series 1997-1,
Class A-6 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $7,750,000
BANCAMERICA SECURITIES, INC. $7,750,000
Amount of Series 1997-1,
Class A-7 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $19,650,000
BANCAMERICA SECURITIES, INC. $19,650,000
Amount of Series 1997-1,
Class A-8 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $13,000,000
BANCAMERICA SECURITIES, INC. $13,000,000
Amount of Series 1997-1,
Class A-9 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $13,772,500
BANCAMERICA SECURITIES, INC. $13,772,500
I-2
Amount of Series 1997-1,
Class M Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $11,135,000
BANCAMERICA SECURITIES, INC. $11,135,000
Amount of Series 1997-1,
Class B-1 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $7,860,000
BANCAMERICA SECURITIES, INC. $7,860,000
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SCHEDULE II
Registration Statement No. 333-3200
Base Prospectus dated June 4, 1996
Prospectus Supplement dated July 31, 1997
Title of Certificates Manufactured Housing Contract Trust
Senior/Subordinate Pass-Through Certificates,
Series 1997-1
Amount of Offered Certificates
(approximate; subject to
a variance of +/- 5%):
Class A-1 Certificates $25,500,000
Class A-2 Certificates $18,000,000
Class A-3 Certificates $20,500,000
Class A-4 Certificates $29,500,000
Class A-5 Certificates $14,300,000
Class A-6 Certificates $15,500,000
Class A-7 Certificates $39,300,000
Class A-8 Certificates $26,000,000
Class A-9 Certificates $27,545,000
Class M Certificates $22,270,000
Class B-1 Certificates $15,720,000
Pass-Through Rate:
Class A-1 Certificates 5.91%
Class A-2 Certificates 6.015%
Class A-3 Certificates 6.06%
Class A-4 Certificates 6.195%
Class A-5 Certificates 6.265%
Class A-6 Certificates 6.34%
Class A-7 Certificates 6.58%
Class A-8 Certificates 6.725%
Class A-9 Certificates 7.015%
Class M Certificates 6.80%
Class B-1 Certificates 6.94%
Purchase Price Percentage:
Class A-1 Certificates 99.861875% (plus accrued interest)
Class A-2 Certificates 99.834375% (plus accrued interest)
Class A-3 Certificates 99.809375% (plus accrued interest)
Class A-4 Certificates 99.800000% (plus accrued interest)
Class A-5 Certificates 99.718750% (plus accrued interest)
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Class A-6 Certificates 99.684375% (plus accrued interest)
Class A-7 Certificates 99.634375% (plus accrued interest)
Class A-8 Certificates 99.600000% (plus accrued interest)
Class A-9 Certificates 99.559375% (plus accrued interest)
Class M Certificates 99.534375% (plus accrued interest)
Class B-1 Certificates 99.421875% (plus accrued interest)
Cut-off Date: June 30, 1997
Closing Date: August 6, 1997 at the offices of Xxxxxxxx &
Xxxxxxxx LLP, Los Angeles, California
Manner of payment for Certificates Immediately available funds
Office for delivery of Certificates The First Chicago Trust Company
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxxxx Xxxxxxx
Office of payment for Certificates Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
Office for checking Certificates The First Chicago Trust Company
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxxxx Xxxxxxx
Denominations: $1,000 and integral multiples of $1 in excess
thereof
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Modification of representations and warranties contained in Section 1 of the
Underwriting Agreement: [indicate, if any, or state "None"]
None
Modification of opinion of counsel delivered pursuant to Section 6(c) of the
Underwriting Agreement: [indicate, if any, or state "None"]
None
Modification of items to be covered by the letter from Ernst & Young
delivered pursuant to Section 6(i) of the Underwriting Agreement:
[indicate, if any, or state "None"]
None
Modification of items to be covered by the letter from Ernst & Young
delivered pursuant to Section 6(j) of the Underwriting Agreement:
[indicate, if any, or state "None"]
None
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