EXHIBIT 1
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST III
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 1997-2
UNDERWRITING AGREEMENT
November 14, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
(for itself and the other Underwriters
named in Schedule I hereto)
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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
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Schedule I, then the terms "Underwriter" and "Underwriters" shall refer solely
to you) certain of its BankAmerica Manufactured Housing Contract Trust III
Senior/Subordinate Pass-Through Certificates, Series 1997-2 (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 November 1, 1997, by and between Bank of America,
FSB, as 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
October 31, 1997. 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
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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 November 10, 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 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 supple-
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mented 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,
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however, it makes no representations or warranties as to the information
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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 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
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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 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) seek ing 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.
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(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
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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, other than the Class
A-1 Certificates, as specified in Schedule II from November 10, 1997 to but not
including the Closing Date.
Section 3. Delivery and Payment. Delivery of and payment for the Offered
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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 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
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1:00 p.m. on the business day prior to the Closing Date.
Section 4. Offering by Underwriters. It is understood that the
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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
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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 amend ment 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 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
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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 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
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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
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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
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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 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, 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 or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under
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which they were made, not misleading.
(c) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
Sutcliffe 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 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 Seller
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 Seller 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 Seller, enforceable against the 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 Seller.
(v) The Offered Certificates have been duly authorized and
delivered by the Contract Seller and, assuming due
authentication by the Trustee in accordance with the terms of
the Agreement, when issued, paid for and delivered in
accordance
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with the terms of this Underwriting Agreement and the
Agreement, will be duly and validly issued and outstanding and
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 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 Seller in the Agreement, each Class of 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 Seller 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
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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) 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) each Class of 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.
(xi) The Class A-1 Certificates would qualify as "Eligible
Securities" under paragraph (a)(9) of Rule 2a-7 under the
Investment Company Act of 1940, as amended.
In addition, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP shall state that they have
participated in conferences with your representatives and with representatives
of the Contract Seller 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
counsel for the Contract Seller, a favorable opinion, dated the Closing
Date and
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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 and has the requisite power and authority, corporate or other,
to own its own properties and conduct its own business, as presently
conducted by it, and to enter into and perform its obligations under
the 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.
(iii) No consent, approval, authorization or order of the
State of California or federal court or governmental agency or body is
required for the consummation by BAFSB of the transactions
contemplated by the terms of this Underwriting Agreement and the
Agreement, except for those consents, approvals, authorizations or
orders which previously have been obtained.
(iv) The consummation of the transactions contemplated by, and
the performance by BAFSB 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 BAFSB 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 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.
(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 BAFSB 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
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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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
Sutcliffe LLP an opinion to the effect that to the extent that the transfer
of the Contracts and the proceeds thereof by the Bank to the Trustee
pursuant to the Agreement does 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 Bank's 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
Sutcliffe LLP an opinion to the effect that should the FDIC be appointed as
conservator or receiver for the Bank 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 the Bank 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 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 ▇▇▇▇▇ & ▇▇▇▇ LLP,
13
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 ▇▇▇▇▇'▇ Investors
Service, Inc., a rating letter assigning a rating of P-1 to the Class A-1
Certificates, a rating of Aaa to the Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9 and Class A-IO
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 F-1+ to the Class A-1,
a rating of AAA to the Class A-2, Class A-3, Class A-4, Class A-5, Class A-
6, Class A-7, Class A-8, Class A-9 and Class A-IO Certificates, a rating of
at least AA- to the Class M Certificates, a rating of BBB to the Class 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.
14
(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
III, Senior/Subordinate Pass-Through Certificates, Series 1997-2.
(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).
(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 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.
15
(n) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
Sutcliffe LLP, a letter to the effect that the Underwriters may rely upon
the opinion rendered by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 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.
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
16
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 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 November __, 1997
and such Underwriter shall in each case reimburse the Contract Seller and its
17
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 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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
18
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 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
19
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 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
20
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 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
------------------------------------------
agree-
21
ments, representations, warranties, indemnities and other statements of the
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: Bank of America, FSB c/o BankAmerica Housing Services, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investor
Servicing, with copies to Bank of America National Trust and Savings
Association, Corporate Treasury Capital Markets Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and to Legal Department ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, 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.
22
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Accepted at New York, New York
as of the date first written
above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
for itself and the other Underwriters
named on Schedule I hereto
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________
Title: Principal
______________________________
SCHEDULE I
Amount of Series 1997-2,
Class A-1 Certificates to
Underwriter be Purchased
----------- --------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $14,750,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $14,750,000
Amount of Series 1997-2,
Class A-2 Certificates to
Underwriter be Purchased
----------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $24,500,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $24,500,000
Amount of Series 1997-2,
Class A-3 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $22,500,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $22,500,000
Amount of Series 1997-2,
Class A-4 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $25,000,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $25,000,000
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Amount of Series 1997-2,
Class A-5 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $16,500,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $16,500,000
Amount of Series 1997-2,
Class A-6 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $16,000,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $16,000,000
Amount of Series 1997-2,
Class A-7 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $25,500,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $25,500,000
Amount of Series 1997-2,
Class A-8 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $26,000,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $26,000,000
Amount of Series 1997-2,
Class A-9 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $34,250,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $34,250,000
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Amount of Series 1997-2,
Class A-IO Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $249,999,946.95
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $249,999,946.95
Amount of Series 1997-2,
Class M Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $20,625,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $20,625,000
Amount of Series 1997-2,
Class B-1 Certificates to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED $16,250,000
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $16,250,000
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SCHEDULE II
Registration Statement No. 333-35251
Base Prospectus dated November 10, 1997
Prospectus Supplement dated November 14, 1997
Title of Certificates Manufactured Housing Contract Trust III
Senior/Subordinate Pass-Through
Certificates, Series 1997-2
Amount of Offered Certificates
(approximate; subject to
a variance of plus or minus 5%):
Class A-1 Certificates $29,500,000
Class A-2 Certificates $49,000,000
Class A-3 Certificates $45,000,000
Class A-4 Certificates $50,000,000
Class A-5 Certificates $33,000,000
Class A-6 Certificates $32,000,000
Class A-7 Certificates $32,000,000
Class A-8 Certificates $51,000,000
Class A-9 Certificates $52,000,000
Class A-IO Certificates $499,999,893.90*
Class M Certificates $41,250,000
Class B-1 Certificates $32,500,000
-------
*Initial Notional Amount
Pass-Through Rate:
Class A-1 Certificates 5.825%
Class A-2 Certificates 6.130%
Class A-3 Certificates 6.230%
Class A-4 Certificates 6.310%
Class A-5 Certificates 6.390%
Class A-6 Certificates 6.470%
Class A-7 Certificates 6.690%
Class A-8 Certificates 6.790%
Class A-9 Certificates 7.090%
Class A-IO Certificates 0.150%
Class M Certificates 6.900%
Class B-1 Certificates 7.070%
ll-1
Purchase Price Percentage:
Class A-1 Certificates 99.877000%
Class A-2 Certificates 99.834375% (plus accrued interest)
Class A-3 Certificates 99.804375% (plus accrued interest)
Class A-4 Certificates 99.784375% (plus accrued interest)
Class A-5 Certificates 99.750000% (plus accrued interest)
Class A-6 Certificates 99.700000% (plus accrued interest)
Class A-7 Certificates 99.618750% (plus accrued interest)
Class A-8 Certificates 99.490625% (plus accrued interest)
Class A-9 Certificates 99.512500% (plus accrued interest)
Class A-IO Certificates 0.6678000% (plus accrued interest)
Class M Certificates 99.534375% (plus accrued interest)
Class B-1 Certificates 99.406250% (plus accrued interest)
Cut-off Date: October 31, 1997
Closing Date: November 20, 1997 at the offices of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
Los Angeles, California
Manner of payment for Certificates Immediately available funds
Office for delivery of Certificates First Chicago Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Office of payment for Certificates ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Office for checking Certificates First Chicago Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Denominations: $1,000 and integral multiples of $1 in
excess thereof
ll-2
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
▇▇▇▇▇ "▇▇▇▇"]
▇▇▇▇
▇▇-▇
