BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 1998-2
UNDERWRITING AGREEMENT
June 23, 1998
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 National Trust and Savings Association ("Bank of
America") and Bank of America, FSB ("BAFSB" and together with Bank of
America, the "Contract Sellers"), propose, 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 their BankAmerica Manufactured Housing Contract
Trust V Senior/Subordinate Pass-Through Certificates, Series 1998-2 (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 June 1, 1998, by and among, Bank of
America, as a Contract Seller, Bank of America, FSB, as a Contract Seller and
Servicer, and The First National Bank of Chicago, as Trustee (the "Trustee").
The "Cut-off Date" shall be the close of business on May 31, 1998. 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 Sellers 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 Sellers are
furnishing to you.
Section 1. REPRESENTATIONS AND WARRANTIES. Each 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. 333-35251) on Form S-3, as amended by Pre-Effective Amendment
No. 1 thereto, dated October 28, 1997, for the registration under
the Securities Act of 1933, as amended (the "Act"), of the Offered
Certificates, which registration statement has become effective on
October 30, 1997 (the "Effective Date") and copies of which have
heretofore been delivered to you, and pursuant to Rule 424 a
preliminary prospectus supplement dated June 16, 1998, 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"). Each 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 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 the 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 Sellers by you, or by any Underwriter
through you, specifically for use in the preparation thereof.
(c) It is a federal savings bank (in the case of BAFSB) or a
national banking association (in the case of Bank of America), duly
organized and validly existing under the laws of the United States,
with full power and authority to conduct its business as
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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
such 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 agreements of such 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 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 such 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 such 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 such 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 such Contract
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Seller or any of its subsidiaries of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
such Contract Seller or any of its subsidiaries. Neither such
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 such Contract Seller to perform
its obligations under the Agreement.
(i) There are no actions or proceedings against, or
investigations of, such Contract Seller pending, or, to the
knowledge of such 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 determined and which
might materially and adversely affect the performance by such
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 such 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 Sellers agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Contract
Seller, the amount of the Offered Certificates set forth opposite each such
Underwriter's
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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 June 10, 1998 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 and time may be postponed by
agreement between the Underwriters and the Contract Sellers 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 Sellers 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 Sellers in writing not
less than three full business days in advance of the Closing Date.
The Contract Sellers agree 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. Each 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 such Contract Seller from the
sale of such Offered Certificates, and such other information as
the Underwriters and the Contract Sellers 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 such 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 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.
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Such 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,
it will cause the Servicer to deliver to the Underwriters the
annual statement as to compliance and the annual statement of a
firm of independent 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.
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(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 Sellers
contained herein as of the date hereof and the Closing Date, the accuracy of
the statements of the Contract Sellers made in any officer's certificate
pursuant to the provisions hereof, the performance by the Contract Sellers of
their 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 Sellers,
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) Each Contract Seller shall have delivered to you a
certificate, dated the Closing Date, of any Vice President,
Assistant Treasurer 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
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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 Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP, counsel for the Contract Sellers, 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 such counsel's knowledge, no
stop order suspending the effectiveness of the
Registration Statement has been issued and not
withdrawn, and no proceedings for that purpose have
been instituted or threatened under Section 8(d) of
the Act.
(ii) There are no contracts or documents of the Contract
Sellers which are required to be filed as exhibits
to the Registration Statement pursuant to the Act
which have not been so filed or incorporated by
reference therein on or prior to the Effective Date.
(iii) The conditions to the use by the Contract Sellers of
a registration statement on Form S-3 have been
satisfied with respect to the Registration Statement
and the Registration Statement, as of the Effective
Date, and the Prospectus, as of the date of the
Prospectus Supplement, other than any financial or
statistical information contained therein as to
which such counsel need express no opinion, complied
as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations thereunder.
(iv) The Agreement constitutes a valid, legal and binding
agreement of the Contract Sellers, enforceable
against each such Contract Seller in accordance with
its terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, and
(ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or
at law. The Underwriting Agreement constitutes a
valid and binding agreement of the Contract Sellers.
(v) The Offered Certificates, when executed and
authenticated in accordance with the terms of the
Agreement and delivered to and paid for by the
Underwriters in accordance with this Underwriting
Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of
the Agreement.
(vi) The statements set forth in the Prospectus under the
heading "Description of the Certificates," insofar
as such statements purport to summarize certain
provisions of the Offered Certificates and the
Agreement, are correct in all material respects.
The statements set
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forth in the Prospectus under the headings "ERISA
Considerations," "Certain Federal Income Tax
Consequences," "Tax-Exempt Investors," "Legal
Investment" and "Other Considerations," to the
extent that they constitute matters of federal law
or legal conclusions with respect thereto, are
correct in all material respects.
(vii) Based solely on the representations and warranties
of the Contract Sellers in the Agreement, the Senior
Certificates and the Class M Certificates will be
"mortgage related securities," as defined in Section
3(a)(41) of the Securities Exchange Act of 1934, as
amended, so long as such Certificates are rated in
one of the two highest rating categories by at least
one nationally recognized statistical rating
organization.
(viii) 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.
(ix) The issuance and sale of the Offered Certificates to
the Underwriters pursuant to this Underwriting
Agreement, the compliance by the Contract Sellers
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; PROVIDED, HOWEVER, no opinion
will be expressed therein with respect to any
consent, approval, authorization, order,
registration or qualification required by, or any
conflict with or violation of, any statute, rule or
regulation applicable to BAFSB because of its status
as a federal savings bank or to Bank of America
because of its status as a national banking
association, as to which the Underwriters will
receive a separate in-house opinion.
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(x) Assuming compliance with all provisions of the
Agreement, under existing law, (a) the Trust Fund
will be treated as a "real estate mortgage
investment conduit" (a "REMIC"), as defined by
Section 860D of the Internal Revenue Code of 1986
(the "Code"), (b) the Senior Certificates, Class M
Certificates, Class B-1 Certificates and Class B-2
Certificates will be treated as (or will be
comprised of) "regular interests" in such REMIC, as
the term "regular interest" is defined in the Code,
and (c) the Class R Certificates will be treated as
the sole class of "residual interests" in the REMIC,
as the term "residual interest" is defined in the
Code. However, continuation of the status of the
Trust Fund as a REMIC may entail compliance with
statutory changes in the future and with regulations
not yet issued.
In addition, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP shall state that
they have participated in conferences with your representatives and with
representatives of the Contract Sellers concerning the Registration Statement
and the Prospectus and have considered the matters required to be stated
therein and the statements contained therein, although such counsel need not
independently verified the accuracy, completeness or fairness of such
statements. Based upon and subject to the foregoing, such counsel shall
state that nothing has come to its attention to cause it to believe that the
Registration Statement (excluding any exhibits filed therewith), as of the
Effective Date, contained an 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 not misleading, that the Prospectus, as of the date of
the Prospectus Supplement and as of the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state 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 (it being understood that such counsel have not been requested
to and such counsel does not make any comment in this paragraph with respect
to the financial statements, schedules and other financial and statistical
information contained in the Registration Statement or the Prospectus).
(d) The Underwriters shall have received from Xxxxxx X.
Xxxxxxxxxx, counsel for the Contract Sellers, a favorable opinion,
dated the Closing Date and satisfactory in form and substance to
counsel for the Underwriters, to the effect that:
(i) BAFSB is duly organized and validly existing as a
federal savings bank in good standing under the federal laws
of the United States, Bank of America is duly organized and
validly existing as a national banking association in good
standing under the federal laws of the United States, and each
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 Agreement, this Underwriting Agreement
and the Offered Certificates.
(ii) This Underwriting Agreement and the Agreement have
been duly and validly authorized, executed and delivered by
BAFSB and Bank of America.
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(iii) The issuance and sale of the Offered Certificates to
the Underwriters, the compliance by BAFSB and Bank of America
with the other provisions of the Agreement and this
Underwriting Agreement, and the consummation of the other
transactions therein contemplated do not, under any statute,
regulation or rule applicable to BAFSB because of its status
as a federal savings bank or to Bank of America because of its
status as a national banking association, require the consent,
approval, authorization, order, registration or qualification
of or with any court or governmental authority; 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, or to
such counsel's knowledge, any rule or regulation currently
applicable to BAFSB because of its status as a federal savings
bank or to Bank of America because of its status as a national
banking association.
(iv) The consummation of the transactions contemplated
by, and the performance by either BAFSB or Bank of America of
any other of the terms of, this Underwriting Agreement and the
Agreement will not result in a breach of any term or provision
of the charter or bylaws of either BAFSB or Bank of America or
any State of California or federal statute or regulation or
conflict with, result in a breach, violation or acceleration
of, or constitute a default under, the terms of any indenture
or other material agreement or instrument to which BAFSB or
Bank of America is a party or by which it is bound or any
order or regulation of the State of California or federal
court, regulatory body, administrative agency or governmental
body having jurisdiction over BAFSB or Bank of America.
(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 this Underwriting
Agreement, the Agreement or the Offered Certificates, or (b)
seeking to prevent the issuance of the Offered Certificates or
the consummation of any of the transactions contemplated by
this Underwriting Agreement or the Agreement, which might
materially and adversely affect the performance by either
BAFSB or Bank of America of its obligations under, or the
validity or enforceability of, this Underwriting Agreement or
the Offered Certificates.
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 Sellers), 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 Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP an opinion to the effect that to the
extent that the transfer of the Contracts and the proceeds thereof
by the Contract Sellers to the Trustee pursuant to the Agreement
does
11
not constitute an absolute assignment of such Contracts and the
proceeds thereof, then the Agreement creates in favor of the
Trustee a security interest in the Contract Sellers' rights in such
Contracts and the proceeds thereof. Such security interest will be
perfected upon the due and proper filing of the Financing Statement
with the California Secretary of State. At the time of such
perfection, such security interest will be of first priority.
(f) The Underwriters shall have received from Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP an opinion to the effect that should the
FDIC be appointed as conservator or receiver for either Contract
Seller pursuant to Section 11(c) of the FDIA, and should the
transfer of the Contracts and the proceeds thereof to the Trustee
pursuant to the Agreement be characterized as a secured transaction
rather than an absolute sale, then if the matter were properly
briefed and presented, the court would hold that the security
interest of the Trustee for the benefit of the holders of the
Certificates under the Agreement in the Contracts and the proceeds
thereof is enforceable against either Contract Seller with respect
to such Contracts and such proceeds (within the meaning of Section
9-203 of the applicable Uniform Commercial Code).
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.
(g) The Underwriters shall have received from Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP 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 & Xxxx
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 Sellers" and
"Prepayment and Yield Considerations" agrees with the records of
the Contract Sellers or the Servicer, as the case may be.
12
(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 Sellers"
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 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-5 Certificates, Class
A-6 Certificates and Class A-7 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 IBCA, Inc., a rating letter
assigning a rating of AAA to the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-6 Certificates and Class A-7
Certificates, a rating of at least AA- to the Class M Certificates,
a rating of at least BBB to the Class B-1 Certificates and a rating
of at least 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 V, Senior/Subordinate
Pass-Through Certificates, Series 1998-2.
(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).
13
(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.
(vi) Assuming due authorization, execution and delivery
of the Agreement by the Contract Sellers, 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
either 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 Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP, a letter to the effect that the
Underwriters may rely upon the opinion rendered by Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP to any Rating Agency that is not
addressed to the Underwriters 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 Sellers 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 Sellers 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.
14
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Contract Sellers, jointly and severally, 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
Sellers 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 Sellers 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 each Contract Seller and their respective directors,
officers, agents and employees against any losses, claims, damages, or
liabilities to which such 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 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 Sellers by you,
or by such Underwriter through you, specifically for use therein, and will
reimburse each Contract Seller and their 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.
15
Each Underwriter, severally but not jointly, shall indemnify
and hold harmless the Contract Sellers and their 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 June __, 1998 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 Sellers 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 Sellers 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 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
16
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 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 Sellers 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 Sellers
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 Sellers 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 Sellers 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 Sellers, on the one hand, or
17
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 Sellers, 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 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 Sellers under this Section 8
shall be in addition to any liability which the Contract Sellers 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 Sellers (including any person who, with his consent,
is named in the Registration Statement as about to become a director of
either Contract Seller), to each officer of either Contract Seller who has
signed the Registration Statement and to each person, if any, who controls
either 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.
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
18
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
Sellers 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 Sellers 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 Sellers
(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 Sellers 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
Sellers, 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 Sellers 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 Contract Sellers or their 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 Sellers 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 Sellers or the Servicer,
will be mailed, delivered, telegraphed or telecopied and confirmed to it at
the following address: Bank of America, FSB c/o BankAmerica Housing
Services, 00000 Xxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention:
Manager, Investor Servicing, with copies to Bank of America
19
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.
20
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 Sellers and the Underwriters.
Very truly yours,
BANK OF AMERICA, FSB
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-----------------------------------
Name:
Title:
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:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
21
SCHEDULE I
Amount of Series 1998-2,
Class A-1 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $26,290,000
BANCAMERICA XXXXXXXXX XXXXXXXX $7,170,000
XXXXXXX, SACHS & CO. $7,170,000
NATIONSBANC XXXXXXXXXX SECURITIES LLC $7,170,000
Amount of Series 1998-2,
Class A-2 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $43,450,000
BANCAMERICA XXXXXXXXX XXXXXXXX $11,850,000
XXXXXXX, SACHS & CO. $11,850,000
NATIONSBANC XXXXXXXXXX SECURITIES LLC $11,850,000
Amount of Series 1998-2,
Class A-3 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $35,200,000
BANCAMERICA XXXXXXXXX XXXXXXXX $9,600,000
XXXXXXX, SACHS & CO. $9,600,000
NATIONSBANC XXXXXXXXXX SECURITIES LLC $9,600,000
Amount of Series 1998-2,
Class A-4 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $42,900,000
BANCAMERICA XXXXXXXXX XXXXXXXX $11,700,000
XXXXXXX, SACHS & CO. $11,700,000
NATIONSBANC XXXXXXXXXX SECURITIES LLC $11,700,000
Amount of Series 1998-2,
Class A-5 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $24,200,000
BANCAMERICA XXXXXXXXX XXXXXXXX $6,600,000
XXXXXXX, SACHS & CO. $6,600,000
NATIONSBANC XXXXXXXXXX SECURITIES LLC $6,600,000
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Amount of Series 1998-2,
Class A-6 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $37,950,000
BANCAMERICA XXXXXXXXX XXXXXXXX $10,350,000
XXXXXXX, SACHS & CO. $10,350,000
NATIONSBANC XXXXXXXXXX SECURITIES LLC $10,350,000
Amount of Series 1998-2,
Class A-7 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $99,387,750
BANCAMERICA XXXXXXXXX XXXXXXXX $27,105,750
XXXXXXX, SACHS & CO. $27,105,750
NATIONSBANC XXXXXXXXXX SECURITIES LLC $27,105,750
Amount of Series 1998-2,
Class M Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $28,296,950
BANCAMERICA XXXXXXXXX XXXXXXXX $7,717,350
XXXXXXX, SACHS & CO. $7,717,350
NATIONSBANC XXXXXXXXXX SECURITIES LLC $7,717,350
Amount of Series 1998-2,
Class B-1 Certificates to
Underwriter be Purchased
----------- ------------
XXXXXX XXXXXXX & CO. INCORPORATED $22,637,450
BANCAMERICA XXXXXXXXX XXXXXXXX $6,173,850
XXXXXXX, SACHS & CO. $6,173,850
NATIONSBANC XXXXXXXXXX SECURITIES LLC $6,173,850
I-2
SCHEDULE II
Registration Statement No. 333-35251
Base Prospectus dated June 16, 1998
Prospectus Supplement dated June 23, 1998
Title of Certificates Manufactured Housing Contract Trust V
Senior/Subordinate Pass-Through
Certificates, Series 1998-2
Amount of Offered Certificates
(approximate; subject to
a variance of PLUS OR MINUS 5%):
Class A-1 Certificates $47,800,000
Class A-2 Certificates $79,000,000
Class A-3 Certificates $64,000,000
Class A-4 Certificates $78,000,000
Class A-5 Certificates $44,000,000
Class A-6 Certificates $69,000,000
Class A-7 Certificates $180,705,000
Class M Certificates $51,449,000
Class B-1 Certificates $41,159,000
Pass-Through Rate:
Class A-1 Certificates 5.89%
Class A-2 Certificates 6.04%
Class A-3 Certificates 6.04%
Class A-4 Certificates 6.11%
Class A-5 Certificates 6.20%
Class A-6 Certificates 6.24%
Class A-7 Certificates 6.55%*
Class M Certificates 6.83%*
Class B-1 Certificates 7.93%*
* Subject to a maximum rate as described in the Agreement.
Purchase Price Percentage:
Class A-1 Certificates 99.87225% (plus accrued interest)
Class A-2 Certificates 99.84180% (plus accrued interest)
Class A-3 Certificates 99.81065% (plus accrued interest)
Class A-4 Certificates 99.78157% (plus accrued interest)
Class A-5 Certificates 99.76997% (plus accrued interest)
Class A-6 Certificates 99.72331% (plus accrued interest)
Class A-7 Certificates 99.67794% (plus accrued interest
Class M Certificates 99.49112% (plus accrued interest)
Class B-1 Certificates 99.21031% (plus accrued interest)
Cut-off Date: May 31, 1998
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Closing Date: June 25, 1998 at the offices of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, Los Angeles, California
Manner of payment for Certificates Immediately available funds
Office for delivery of Certificates First Chicago Trust Company of New York
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005
Attn: Xxxxxxx Xxxxxxxxx
Office of payment for Certificates Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Office for checking Certificates First Chicago Trust Company of New York
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005
Attn: Xxxxxxx Xxxxxxxxx
Denominations: $1,000 and integral multiples
of $1 in excess thereof
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
II-2
