Exhibit 1.1
BANC OF AMERICA MORTGAGE SECURITIES, INC.
$
(Approximate)
Mortgage Pass-Through Certificates,
Series 200___-_
______ ___, 20__
UNDERWRITING AGREEMENT
Banc of America Securities LLC
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. Introductory. Banc of America Mortgage Securities, Inc., a
Delaware corporation (the "Company"), proposes to sell to Banc of America
Securities LLC (the "Underwriter"), $______________ principal amount of its
Mortgage Pass-Through Certificates identified in Schedule I hereto (the "Offered
Certificates") having the Initial Class Certificate Balances set forth in
Schedule I (subject to an upward or downward variance, not to exceed 5%, of the
precise Initial Class Certificate Balance within such range to be determined by
the Company in its sole discretion). The Offered Certificates, together with
three classes of subordinate certificates (the "Non-Offered Certificates") are
collectively referred to herein as the "Certificates" and evidence the entire
ownership interest in the assets of a trust estate (the "Trust Estate")
consisting primarily of a pool of adjustable interest rate mortgage loans having
original terms to maturity of not more than _____ months as described in
Schedule I (the "Mortgage Loans") to be acquired by the Company pursuant to a
mortgage loan purchase agreement (the "Mortgage Loan Purchase Agreement"), to be
dated _______ ___, 200__, between the Company and Bank of America, National
Association ("BANA"). As of the close of business on the date specified in
Schedule I as the cut-off date (the "Cut-off Date"), the Mortgage Loans will
have the aggregate principal balance set forth in Schedule I. This Underwriting
Agreement shall hereinafter be referred to as the "Agreement." Elections will be
made to treat the assets of the Trust Estate as two separate real estate
mortgage investment conduits (each, a "REMIC"). The Certificates are to be
issued pursuant to a pooling and servicing agreement, to be dated ______ ___,
200___ (the "Pooling Agreement"), among the Company, as depositor, BANA, as
servicer (the "Servicer"), and _________________, as trustee (the "Trustee").
The Offered Certificates will be issued in the denominations specified in
Schedule I. The Pooling Agreement, this Agreement, the Mortgage Loan Purchase
Agreement and the purchase agreement, to be dated ______ ___, 200__, among Banc
of America Securities LLC, as Purchaser, the Company and BANA, are collectively
referred to herein as the "Basic Documents."
Capitalized terms used herein that are not otherwise defined herein have
the meanings assigned thereto in the Pooling Agreement.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Offered Certificates. Such registration statement, as amended to
the date of this Agreement, meets the requirements set forth in Rule
415(a)(1) under the Act and complies in all other material respects with
said Rule. The Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement to the form of prospectus included in
such registration statement relating to the Offered Certificates and the
plan of distribution thereof and has previously advised the Underwriter of
all further information (financial and other) with respect to the Company
to be set forth therein. Such registration statement, including the
exhibits thereto, as amended to the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form in which
it appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplement to the Basic Prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424, is
hereinafter called the "Prospectus Supplement" and, collectively with the
Basic Prospectus, the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Basic
Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue date of
the Basic Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will comply in
all material respects with the Act and the respective rules thereunder,
(ii) the Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, and (iii) the Final Prospectus, as
amended or supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made,
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not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
the Underwriter specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus.
(c) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Delaware and has corporate
and other power and authority to own its properties and conduct its
business, as now conducted by it, and to enter into and perform its
obligations under this Agreement and the other Basic Documents to which it
is a party.
(d) The Company is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the Basic
Prospectus or for any additional information or (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement.
(e) This Agreement has been duly authorized, executed and delivered
by the Company, and each of the other Basic Documents to which the Company
is a party, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company, and will constitute a legal, valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting creditors' rights generally and to
general principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law), and
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws or principles of public policy.
(f) The Company is not, and on the date on which the first bona fide
offer of the Offered Certificates is made will not be, an "ineligible
issuer," as defined in Rule 405 under the Act.
SECTION 3. Purchase, Sale and Delivery of Offered Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, the principal amount of Offered Certificates at a purchase price
set forth in Schedule I hereto.
The Company will deliver the Offered Certificates to the Underwriter,
against payment of the purchase price therefor in same day funds wired to such
bank as may be designated by the Company, or by such other manner of payment as
may be agreed upon by the Company and the Underwriter, at the offices of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York, New York at 10:00 A.M., Eastern
time, on _________, 20___, or at such other place or time not later than seven
full business days thereafter as the Underwriter and the Company determine, such
time being referred to herein as the "Closing Date."
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The Offered Certificates so to be delivered will be in such denominations
and registered in such names as the Underwriter requests two full business days
prior to the Closing Date and will be made available at the office of Banc of
America Securities LLC, Charlotte, North Carolina or, upon the Underwriter's
request, through the facilities of The Depository Trust Company.
SECTION 4. Offering by the Underwriter.
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(a) It is understood that the Underwriter proposes to offer the
Offered Certificates subject to this Agreement for sale to the public
(which may include selected dealers) on the terms as set forth in the
Final Prospectus.
(b) The Underwriter represents and warrants to, and agrees with, the
Company, that:
In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a "Relevant Member State"), it
has not made and will not make an offer of Certificates to the public in that
Relevant Member State prior to the publication of a prospectus in relation to
the Offered Certificates which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that it may, with
effect from and including the relevant implementation date, make an offer of
Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this representation, the expression an "offer of
Certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Certificates to be
offered so as to enable an investor to decide to purchase or subscribe the
Certificates, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
"Prospectus Directive" means the European Commission Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
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It has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the United Kingdom
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of the Certificates in circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
It has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Offered
Certificates in, from or otherwise involving the United Kingdom.
SECTION 5. Covenants of the Company. The Company hereby covenants and
agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Offered
Certificates, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished the Underwriter a copy for its
review prior to filing and will not file any such proposed amendment or
supplement to which the Underwriter reasonably objects. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424. The Company will advise
the Underwriter promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any amendment to
the Registration Statement relating to the Offered Certificates shall have
become effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to amend or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will use its best efforts to cause
any required post-effective amendment to the Registration Statement
containing such amendment to be made effective as soon as possible.
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(c) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, executed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by the Underwriter or dealer may be required by the Act, as
many copies of the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriter may reasonably request. The Company
will pay the expenses of printing all documents relating to the initial
offering.
(d) The Company will furnish such information as may be required and
otherwise cooperate in qualifying the Offered Certificates for sale under
the laws of such jurisdictions as the Underwriter may reasonably designate
and to maintain such qualifications in effect so long as required for the
distribution of the Offered Certificates; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
SECTION 6. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase the Offered Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Underwriter shall have received from PricewaterhouseCoopers
LLP (i) a letter, dated the date hereof, confirming that they are
independent public accountants within the meaning of the Act and the rules
and regulations of the Commission promulgated thereunder and otherwise in
form and substance reasonably satisfactory to the Underwriter and counsel
to the Underwriter and (ii) if requested by the Underwriter, a letter
dated the Closing Date, updating the letter referred to in clause (i)
above, in form and substance reasonably satisfactory to the Underwriter
and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be
made by the Company under the Act prior to the sale of the Offered
Certificates shall have been duly taken and made. At and prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company or
the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company or the Servicer which, in the reasonable
judgment of the Underwriter, materially impairs the investment quality of
the Offered Certificates; (ii) any downgrading in the rating of the
Servicer by any "nationally recognized statistical rating organization"
(as such term is defined for
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purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of the
Servicer (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange; (iv) any banking moratorium declared by
federal, North Carolina or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Underwriter, the effects of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Offered Certificates.
(d) The Underwriter shall have received a certificate dated the
Closing Date of an executive officer of the Company in which such officer
shall state that, to the best of such officer's knowledge after reasonable
inspection, (i) the representations and warranties of the Company
contained in the Basic Documents are true and correct with the same force
and effect as if made on the Closing Date and (ii) the Company has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
(e) The Underwriter shall have received an opinion of counsel for
the Company, which may be an opinion of in-house counsel to the Company,
dated the Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter.
(f) The Underwriter shall have received a certificate of an
executive officer of BANA, dated as of the Closing Date, to the effect
that, to the best of such officer's knowledge, (i) the representations and
warranties contained in the Mortgage Loan Purchase Agreement are true and
correct with the same force and effect as though made on and as of the
Closing Date and (ii) such officer has reviewed the Final Prospectus as
amended or supplemented to the Closing Date and nothing has come to such
officer's attention that would lead such officer to believe that the Final
Prospectus as amended or supplemented, insofar as it relates to BANA or
the Mortgage Loans originated or acquired by BANA, contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) The Underwriter shall have received an opinion of counsel for
BANA, which may be an opinion of in-house counsel to BANA, dated the
Closing Date, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter.
(h) The Underwriter shall have received an opinion of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, which opinion may
rely on, and assume the accuracy of, the opinions described in paragraphs
(e) and (g) above, dated
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the Closing Date, in form and substance satisfactory to the Underwriter
and counsel for the Underwriter.
(i) The Underwriter shall have received copies of any opinions of
counsel for the Company that the Company is required to deliver to any
Rating Agency. Any such opinions shall be dated the Closing Date and
addressed to the Underwriter or accompanied by reliance letters addressed
to the Underwriter.
(j) The Underwriter shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, special counsel for the Underwriter, a letter dated the
Closing Date with respect to the Final Prospectus, substantially to the
effect that nothing has come to such counsel's attention in the course of
its review of the Final Prospectus which causes it to believe that the
Final Prospectus, as of the date of the Prospectus Supplement or the
Closing Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel need
not express any view as to any information incorporated by reference in
the Final Prospectus or as to the adequacy or accuracy of the financial,
numerical, statistical or quantitative information included in the Final
Prospectus.
(k) The Underwriter shall have received an opinion of reasonably
acceptable counsel to the Trustee, dated the Closing Date, in form and
substance satisfactory to the Underwriter and counsel for the Underwriter.
(l) On or before the Closing Date, the Underwriter shall have
received evidence satisfactory to it that each class of Offered
Certificates has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Certificates and the Pooling Agreement
will conform in all material respects to the descriptions thereof
contained in the Final Prospectus.
(n) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Final Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of counsel to the Underwriter, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Pooling
Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the
Registration Statement and the Final Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all respects to counsel for
the Underwriter, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
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The Company will provide or cause to be provided to the Underwriter such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
SECTION 7. Reimbursement of the Underwriter's Expenses. If the sale of the
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriter set forth in Section 6 hereof is
not satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriter, the Company will reimburse
the Underwriter upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
it in connection with the proposed purchase and sale of the Offered
Certificates.
SECTION 8. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless the Underwriter and
BANA and any person who controls the Underwriter or BANA within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, to which they may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Offered Certificates as originally filed
or in any amendment thereof, or in the Basic Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (ii) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Free Writing Prospectus (as defined in Section
11(a)) prepared by the Company or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in either case, at the time at which an investor in the Offered
Certificates enters into a contract of sale for the Offered Certificates, or if
such contract of sale is subsequently terminated and a new contract of sale is
entered into by mutual agreement between such investor and the Underwriter, such
time at which the new contract of sale is entered into (such time, the "Time of
Sale"), to the person asserting a claim, when considered in conjunction with all
information with respect to the
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offering of the Offered Certificates which has been conveyed to such investor at
the Time of Sale, and the Company agrees to reimburse the Underwriter and BANA
and each such controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Underwriter or BANA specifically for use in connection with the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration Statement
and BANA and each person who controls the Company or BANA within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Underwriter and BANA, but only with reference
to (A) written information relating to the Underwriter furnished to the Company
by or on behalf of the Underwriter specifically for use in the preparation of
the documents referred to in the foregoing indemnity, or (B) any Free Writing
Prospectus (as defined in Section 11(a)) prepared by or on behalf of the
Underwriter, except that no such indemnity shall be available for any losses,
claims, damages or liabilities, or actions in respect thereof resulting from any
error in any Issuer Information (as defined in Section 11(b)) (an "Issuer
Error") furnished by BANA to the Underwriter in writing or by electronic
transmission that was used in the preparation of any Free Writing Prospectus,
other than an Issuer Error as to which, prior to the Time of Sale of the Offered
Certificates to the person asserting a claim, BANA notified the Underwriter in
writing of the Issuer Error or provided in written or electronic form
information superseding or correcting such Issuer Error (in any such case, a
"Corrected Issuer Error"). This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have. The Company and BANA
acknowledge that the statements set forth in the Prospectus Supplement in the
first sentence of the last paragraph on the cover page and in the second, third
and fifth paragraphs under the heading "Method of Distribution" constitute the
only information furnished in writing by or on behalf of the Underwriter for
inclusion in the documents referred to in the foregoing indemnity.
(c) BANA agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, the
Underwriter and each person who controls the Company or the Underwriter within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriter and BANA, but only with
reference to (A) written information relating to BANA or the Mortgage Loans
furnished to the Company by or on behalf of BANA specifically for use in the
preparation of the documents referred to in the foregoing indemnity and (B) any
Issuer Error, other than a Corrected Issuer Error. The Company and the
Underwriter acknowledge that the statements set forth under the headings "The
Mortgage Pool," "Static Pool Information," "The Sponsor" or "The Servicer" in
the Prospectus Supplement or "The Sponsor," "The Mortgage Loan Programs" or
"Servicing of the Mortgage Loans" in the Prospectus constitute the only
information furnished in writing by or on behalf of BANA for inclusion in the
documents referred to in the foregoing indemnity.
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(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Underwriter in the case of
subparagraphs (a) or (c), representing the indemnified parties under
subparagraphs (a) or (c) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(e) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraphs (a), (b) or (c) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Underwriter or BANA on the grounds
of policy or otherwise, the Company, the Underwriter, or BANA shall contribute
to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending
same) to which the Company, the Underwriter or BANA may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which do not arise out of or are not based
upon any untrue statement or omission of a material fact in any Free
Writing Prospectus, in such proportion as is appropriate to reflect the
relative benefit received by each of the Company, the Underwriter and
BANA; and
11
(ii) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which arise out of or are based upon any
untrue statement or omission of a material fact in any Free Writing
Prospectus, in such proportion as is appropriate to reflect the relative
fault of the Company, the Underwriter and BANA in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact in such Free Writing Prospectus results from information
prepared by the Company, the Underwriter or BANA and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph (e), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, each person
who controls BANA within the meaning of either the Act or the Exchange Act shall
have the same rights to contribution as BANA and each person who controls the
Company within the meaning of either the Act or the Exchange Act, and each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the preceding sentence of this paragraph (e).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (e), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(e).
SECTION 9. Representations and Indemnities to Survive; No Fiduciary Duty.
-------------------------------------------------------------
(a) The respective agreements, representations, warranties, indemnities
and other statements of the Company and its respective officers, BANA and of the
Underwriter set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter, BANA or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Offered Certificates. The provisions of Sections 7 and 8
hereof and this Section 9 shall survive the termination or cancellation of this
Agreement.
(b) Each of BANA and the Company acknowledges and agrees that in
connection with all aspects of the transactions contemplated herein, BANA, the
Company and their affiliates each have arm's-length business relationships with
the Underwriter and its affiliates that create no fiduciary duty on the part of
the Underwriter or any of its affiliates, and each such party expressly
disclaims any fiduciary relationship.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
12
This Agreement shall be subject to termination in the absolute discretion
of the Underwriter, by notice given to the Company prior to delivery of and
payment for the Offered Certificates, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared by federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriter, impracticable to market the Offered Certificates.
SECTION 11. Offering Communications; Free Writing Prospectuses.
--------------------------------------------------
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not convey or
deliver any written communication to any person in connection with the initial
offering of the Certificates, unless such written communication (i) is made in
reliance on Rule 134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (iii) constitutes a "free writing
prospectus," as defined in Rule 405 under the Act (a "Free Writing Prospectus").
Without limitation thereby, without the prior written consent of the Company
(which consent may be withheld for any reason), the Underwriter shall not convey
or deliver in connection with the initial offering of the Certificates any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the Act ("ABS Informational and Computational Material"), in
reliance upon Rules 167 and 426 under the Act.
(b) (i) The Underwriter shall deliver to the Company, no later
than two business days prior to the date of first use thereof, (A) any Free
Writing Prospectus prepared by or on behalf of the Underwriter that contains any
"issuer information," as defined in Rule 433(h) under the Act ("Issuer
Information"), and (B) any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Certificates.
(ii) Notwithstanding the provisions of Section (b)(i), any
Free Writing Prospectus described therein that contains only ABS Informational
and Computational Materials may be delivered by the Underwriter to the Company
not later than the later of (a) two business days prior to the due date for
filing of the Prospectus pursuant to Rule 424(b) under the Act or (b) the date
of first use of such Free Writing Prospectus.
(c) The Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by the Underwriter
pursuant to Section 9(b)(i) or (ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by the Underwriter in connection with its offer and sale of the
Certificates.
(d) The Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 11(b)(i) or (ii) did not, as of the date such Free Writing
Prospectus was conveyed or delivered to any prospective investor, include any
untrue statement of a material fact or omit any material fact required to be
stated therein necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading; provided however,
that the
13
Underwriter makes no representation to the extent such misstatements or
omissions were the result of any inaccurate Issuer Information supplied by the
Company to the Underwriter which information was not corrected by information
subsequently supplied by the Company to the Underwriter prior to the sale to the
investor of the Certificates which resulted in a loss, claim, damage or
liability arising out of or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an
"issuer free writing prospectus," as defined in Rule 433(h) under the Act;
(ii) Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to Section 11(b) hereof;
and
(iii) Any Free Writing Prospectus for which the Company
or any person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated with the
Company or any other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating communications.
(f) Any Free Writing Prospectus required to be filed pursuant to
Section 11(e) by the Company shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final terms of
the Certificates may be filed by the Company within two days of the later of the
date such final terms have been established for all classes of Certificates and
the date of first use;
(ii) any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and Computational
Material may be filed by the Company with the Commission not later than the
later of the due date for filing the final Prospectus relating to the
Certificates pursuant to Rule 424(b) under the Act or two business days after
the first use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed
pursuant to Section 11(e)(3) may, if no payment has been made or consideration
has been given by or on behalf of the Company for the Free Writing Prospectus or
its dissemination, be filed by the Company with the Commission not later than
four business days after the Company becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing Prospectus; and
(iv) the Issuer shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an offering participant
other than the Issuer, if such information is included or incorporated by
reference in a prospectus or Free Writing Prospectus previously filed with the
Commission that relates to the offering of the Certificates, or (B) any Free
Writing Prospectus or portion thereof that contains a description of the
Certificates or the offering of the Certificates which does reflect the final
terms thereof.
14
(g) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or on
behalf of the Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g), the
Underwriter shall file with the Commission any Free Writing Prospectus for which
the Underwriter or any person acting on its behalf provided, authorized or
approved information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made or
consideration given by or on behalf of the Company or any other offering
participant, not later than four business days after the Underwriter becomes
aware of the publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) and 9(g),
neither the Issuer nor the Underwriter shall be required to file any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The issuer has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free
by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively,
the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it
by calling toll-free 1-8[xx-xxx-xxxx]
(k) The Company and the Underwriter agree to retain all Free Writing
Prospectuses that they have used and that are not required to be filed pursuant
to this Section 9 for a period of three years following the initial bona fide
offering of the Certificates.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notice to the Underwriter
shall be directed to Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇; notices
to the Company shall be directed to it at Banc of America Mortgage Securities,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Associate General Counsel, with a copy to the Treasurer; and notices
to BANA shall be directed to Bank of America, National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Associate General Counsel,
with a copy to the Treasurer.
15
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriter, BANA, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Offered Certificates from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH
REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY
ITS TERMS APPLIES TO THIS AGREEMENT).
16
SECTION 15. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Offered
Certificates pursuant to this Agreement, including the determination of the
public offering price of the Offered Certificates and any related discounts and
commissions, is an arm's-length commercial transaction between the Company, on
the one hand, and the Underwriter on the other hand, and the Company is capable
of evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction the Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company or its affiliates,
stockholders, creditors or employees or any other party; (iii) the Underwriter
has not assumed, nor will it assume, an advisory or fiduciary responsibility in
favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether the Underwriter has
advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement; (iv) the Underwriter and its affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Company and that the Underwriter has no obligation to disclose any of such
interests by virtue of any fiduciary or advisory relationship; and (v) the
Underwriter has not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and the Company has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriter with respect to the
subject matter hereof. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the
Underwriter with respect to any breach or alleged breach of fiduciary duty.
SECTION 16. Miscellaneous.
-------------
(a) This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
(d) The headings of the Sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
SECTION 17. Non-Petition.
------------
The Underwriter hereby agrees not to cause or participate in the filing of
a petition in bankruptcy against the Company for the non-payment to the
Underwriter of any amounts provided by this Agreement or otherwise until one
year and one day after the payment in full of all amounts due on the
Certificates in accordance with the terms of the Pooling Agreement.
17
If the foregoing is in accordance with your understanding of our agreement,
please sign this Agreement and return it to us.
Very truly yours,
BANC OF AMERICA MORTGAGE
SECURITIES, INC.
By: _______________________________
Name: _______________
Title:_______________
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
BANC OF AMERICA SECURITIES LLC
By: _________________________
Name: _______________
Title:_______________
Solely for purposes of Sections 8 and 9:
BANK OF AMERICA, NATIONAL ASSOCIATION
By: _________________________
Name: _______________
Title:_______________
18
SCHEDULE I
Offered Certificates: Class 1-A-1, Class 1-A-R, Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 3-A-1, Class 4-A-1, Class B-1, Class B-2 and Class B-3
Registration Statement File Number: ________________
Initial Class Certificate Balances of Offered Certificates:
Initial Class
Class Certificate Balance
---------------------- ----------------------------
Class 1-A-1
Class 1-A-R
Class 2-A-1
Class 2-A-2
Class 2-A-3
Class 3-A-1
Class 4-A-1
Class B-1
Class B-2
Class B-3
Purchase Price: $______________________
Classes of Book-Entry Class 1-A-1, Class 2-A-1, Class 2-A-2,
Certificates: Class 2-A-3, Class 3-A-1, Class 4-A-1,
Class B-1, Class B-2 and Class B-3
Description of Mortgage Loans: A pool of adjustable rate, first mortgage
loans having an aggregate principal
balance as of the Cut-off Date of
approximately $____________. The Mortgage
Loans are adjustable interest rate
mortgage loans secured by one- to
four-family residential properties.
Denominations: The Offered Certificates listed above
under Book-Entry Certificates will be
issued in book-entry form. Each such
Class of Certificates will be evidenced
by one or more certificates registered in
the name of Cede & Co. ("Cede") in the
aggregate amount equal to the Initial
Class Certificate Balance of such Class.
Interests in such Classes of Offered
Certificates issued in the name of Cede
(except the Class B-1, Class B-2 and
Class B-3 Certificates) may be purchased
by investors in minimum denominations of
$1,000 and integral multiples of $1.
Interests in the Class B-1, Class B-2 and
Class B-3 Certificates may be purchased
in minimum denominations of $25,000 and
integral multiples of $1. The Class 1-A-R
Certificate will be issued as a single
certificate in a denomination of $100.
Cut-off Date: ________ 1, 20___.
Pass-Through Rate:
Class Pass-ThroughRate
--------------------------------------
Class 1-A-1
Class 1-A-R
Class 2-A-1
Class 2-A-2
Class 2-A-3
Class 3-A-1
Class 4-A-1
Class B-1
Class B-2
Class B-3
I-2
Certificate Ratings:
--------------------
Class [_____] [_____]
Class 1-A-1
Class 1-A-R
Class 2-A-1
Class 2-A-2
Class 2-A-3
Class 3-A-1
Class 4-A-1
Class B-1
Class B-2
Class B-3
I-3