EXECUTION COPY
BANC OF AMERICA FUNDING CORPORATION
$703,475,133
(Approximate)
Mortgage Pass-Through Certificates,
Series 2006-5
September 27, 2006
UNDERWRITING AGREEMENT
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. Introductory. Banc of America Funding Corporation, a Delaware
corporation (the "Company"), proposes to sell to Banc of America Securities LLC
("BAS" or the "Underwriter") $703,475,133 aggregate Class Certificate Balance of
its Mortgage Pass-Through Certificates identified in Schedule I hereto (the
"Offered Certificates") having the aggregate initial Class Certificate Balances
or Initial Notional Amounts set forth in Schedule I (subject to an upward or
downward variance, not to exceed 5%, of the precise initial Class Certificate
Balance or Initial Notional Amount 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 fixed interest rate mortgage loans having
original terms to maturity of approximately 240 to approximately 360 months as
described in Schedule I (the "Mortgage Loans") to be acquired by the Company
pursuant to a mortgage loan purchase agreement (the "Mortgage Loan Purchase
Agreement"), dated September 28, 2006, by and between the Company, as purchaser
and Bank of America, National Association, as seller. 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 multiple separate real estate mortgage investment conduits (each, a "REMIC").
The Certificates are to be issued pursuant to a pooling and servicing agreement,
dated September 28, 2006 (the "Pooling and Servicing Agreement"), among the
Company, as depositor, ▇▇▇▇▇ Fargo Bank, N.A., as securities administrator (the
"Securities Administrator"), CitiMortgage, Inc., as master servicer (the "Master
Servicer") and U.S. Bank National Association, as trustee (the "Trustee"). The
Offered Certificates will be
issued in the denominations specified in Schedule I. The Pooling and Servicing
Agreement, this Agreement, the Mortgage Loan Purchase Agreement and the purchase
agreement, to be dated September 28, 2006, between BAS, as purchaser and the
Company (the "Purchase Agreement") are collectively referred to herein as the
"Basic Documents."
Capitalized terms used herein that are not otherwise defined herein have
the meanings assigned thereto in the Pooling and Servicing 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 Form S-3 (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)(l)
under the Act and complies in all other material respects with Rule
415(a)(1). 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 a revised form of prospectus (the "Revised
Basic Prospectus") and has previously advised you 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, as revised by the Revised Basic Prospectus,
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) At or prior to the filing dates set forth in Schedule II hereto
(the "Relevant Dates"), the Company prepared the information (collectively,
the "Disclosure Package") listed in Schedule II hereto. If, subsequent to
the date of this Agreement, the Company or the Underwriter has determined
that such information included an untrue statement of material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and
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have terminated their old purchase contracts and entered into new purchase
contracts with purchasers of the Offered Certificates, then "Disclosure
Package" will refer to the information available to purchasers at the time
of entry into the first such new purchase contract, including any
information that corrects such material misstatements or omissions
("Corrective Information").
(c) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all material
respects with the Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or 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.
(d) Each item in the Disclosure Package, at the related Relevant Date
did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation and warranty with respect to the information contained in or
omitted from the Disclosure Package 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 Disclosure Package.
(e) 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.
(f) 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
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suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose by the Commission.
(g) 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.
(h) 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.
(i) On the Closing Date, the Basic Documents will conform to the
description thereof contained in the Registration Statement, the Final
Prospectus and the Disclosure Package; the Offered Certificates will have
been duly and validly authorized and, when such Offered Certificates are
duly and validly executed, issued and delivered in accordance with the
Pooling and Servicing Agreement, and sold to the Underwriter as provided
herein, will be validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement.
(j) As of the Closing Date, the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct.
(k) Neither the execution and delivery by the Company of this
Agreement or any other of the Basic Documents nor the consummation by the
Company of the transactions contemplated herein or therein, nor the
issuance of the Offered Certificates or the public offering thereof as
contemplated in the Final Prospectus or the Disclosure Package will
conflict in any material respect with or result in a material breach of, or
constitute a material default (with notice or passage of time or both)
under, or result in the imposition of any lien, pledge, charge, of the
property or assets of the Company (except as required or permitted pursuant
thereto or hereto), pursuant to any material mortgage, indenture, loan
agreement, contract or other instrument to which the Company is party or by
which it is bound, nor will such action result in any violation of any
provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or by-laws
of the Company. The Company is not in violation of its certificate of
incorporation, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease, trust agreement, transfer and servicing agreement or other
instrument to which a party or by
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which it may be bound, or to which any material portion of its property or
assets is subject.
(l) No legal or governmental proceedings are pending to which the
Company is a party or of which any property of the Company is subject,
which if determined adversely to the Company would, individually or in the
aggregate, have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(m) Since the date of which information is given in the Registration
Statement, there has not been any material adverse change in the business
or net worth of the Company.
(n) Any taxes, fees and other governmental charges in connection with
the execution and delivery of the Basic Documents and the execution,
delivery and sale of the Offered Certificates have been or will be paid at
or prior to the Closing Date.
(o) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and
delivery by the Company of any Basic Document or the performance by the
Company of any or (ii) the offer, sale or delivery of the Offered
Certificates except such as shall have been obtained or made, as the case
may be, or will be obtained or made, as the case may be, prior to the
Closing Date, or will not materially adversely affect the ability of the
Company to perform its obligations under any Basic Document.
(p) The Company possesses, and will possess, all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Preliminary
Prospectus, if any, Final Prospectus and the Disclosure Package, except to
the extent that the failure to have such licenses, certificates,
authorities or permits does not have a material adverse effect on the
Offered Certificates or the financial condition of the Company, and the
Company has not received, nor will have received as of each Closing Date,
any notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the conduct of its business,
operations or financial condition.
(q) On the Closing Date, (i) the Company will have good and marketable
title to the related Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, (ii) the Company will not
have assigned to any person any of its right, title or interest in such
Mortgage Loans or in the Pooling and Servicing Agreement, and (iii) the
Company will have the power and authority to sell such Mortgage Loans to
the Trust, and upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Company, the Master Servicer and the
Securities Administrator, the Trust will have good and marketable title
thereto, in each case free of liens.
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(r) The properties and businesses of the Company conform, and will
conform, in all material respects, to the descriptions thereof contained in
the Final Prospectus and the Disclosure Package.
(s) The Company is not, and, after giving effect to the transactions
contemplated by the Pooling and Servicing Agreement and the offering and
sale of the Offered Certificates, neither the Company nor the Trust Fund
will be, an "investment company," as defined in the Investment Company Act
of 1940, as amended.
(t) It is not necessary in connection with the offer, sale and
delivery of the Offered Certificates in the manner contemplated by this
Agreement to qualify the Pooling and Servicing Agreement under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
(u) Other than the Final Prospectus, the Company (including its agents
and representatives other than the Underwriter) has not made, used,
prepared, authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Offered Certificates other than (i)
information included in the Disclosure Package, (ii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act or
Rule 134 under the Act or (iii) other written communication approved in
writing in advance by the Underwriter.
(v) Any Issuer Free Writing Prospectus included in the Disclosure
Package complied in all material respects with the Act and has been, or
will be filed in accordance with Rule 433 under the Act (to the extent
required thereby).
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 aggregate Class Certificate Balance of the Offered
Certificates, at the purchase price set forth in Schedule I hereto.
The Company will deliver the Offered Certificates to the Underwriter,
against payment of the applicable 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 Hunton & ▇▇▇▇▇▇▇▇ LLP, Charlotte, North Carolina, at 10:00 A.M.,
Eastern time, on September 28, 2006, 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."
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 offices of Banc of
America Securities LLC, Charlotte, North Carolina or, upon the Underwriter's
request, through the facilities of The Depository Trust Company.
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SECTION 4. Offering by the Underwriter.
(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.
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 Offered Certificates in circumstances
in which Section 21(1) of the FSMA does not apply to the issuing entity.
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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
their 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.
(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 dealers 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,
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provided that any additional expenses incurred in connection with the
requirement of delivery of a market-making prospectus, if applicable, will
be borne by the Underwriter.
(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
obligations 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 Deloitte & Touche 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, any Servicer or the Master Servicer which, in the
reasonable judgment of the Underwriter, materially impairs the investment
quality of the Offered Certificates; (ii) any downgrading in the ratings of
the securities of any Servicer or the Master Servicer by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its ratings of any
securities of any Servicer or the Master 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
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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 reasonably
acceptable counsel to the Master Servicer and counsel to the Securities
Administrator, dated the Closing Date, in form and substance satisfactory
to the Underwriter and counsel for the Underwriter.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, special counsel to the Company and Bank of America, National
Association, dated the Closing Date, in form and substance satisfactory to
the Underwriter and counsel for the Underwriter.
(g) 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.
(h) The Underwriter shall have received from Hunton & ▇▇▇▇▇▇▇▇ LLP,
special counsel to the Underwriter, a letter addressed to the Underwriter
dated the Closing Date with respect to the Final Prospectus, substantially
to the effect that no facts have 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.
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(i) 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.
(j) At the Closing Date, the Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Final Prospectus.
(k) 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.
(l) All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and
Servicing 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.
(m) The Underwriter shall have received a certificate (upon which
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of the Custodian in which such officer shall state that, to the best of
such officer's knowledge after reasonable investigation: (i) the Custodian
is not an affiliate of any other entity listed as a transaction party in
the Prospectus Supplement; (ii) the information in the Prospectus
Supplement related to the Custodian (the "Custodian Disclosure") includes
(a) the Custodian's correct name and form of organization and (b) a
discussion of the Custodian's procedures for safekeeping and preservation
of the mortgage loans; and (iii) the Custodian Disclosure is true and
correct in all material respects and nothing has come to his or her
attention that that would lead such officer to believe that the Custodian
Disclosure contains any untrue statement of material fact or omits to state
a material fact necessary to make the statements therein not misleading.
(n) The Underwriter shall have received a certificate (upon which
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of the Trustee in which such officer shall state that, to the best of such
officer's knowledge after reasonable investigation: (i) the Trustee is not
an affiliate of any other entity listed as a transaction party in the
Prospectus Supplement (ii) the information in the Prospectus Supplement
related to the Trustee (the "Trustee Disclosure") includes (a) the
Trustee's correct name and form of organization and (b) a discussion of the
Trustee's experience serving as trustee for asset-backed securities
transactions involving mortgage loans; and (iii) the Trustee Disclosure is
true and correct in all material respects and nothing has come to his or
her attention
11
that that would lead such officer to believe that the Trustee Disclosure
contains any untrue statement of material fact or omits to state a material
fact necessary to make the statements therein not misleading.
(o) The Underwriter shall have received a certificate (upon which
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., SunTrust Mortgage, Inc., Washington Mutual
Bank, and ▇▇▇▇▇ Fargo Bank, N.A. (each a "Significant Originator" and
together the "Significant Originators") in which such officer shall state
that, to the best of such officer's knowledge after reasonable
investigation: (i) the Significant Originator is not an affiliate of any
other entity listed as a transaction party in the Prospectus Supplement;
(ii) the information in the Prospectus Supplement related to the
Significant Originator (the "Originator Disclosure") includes the
Significant Originator's correct name, form of organization and length of
time originating mortgage loans; (iii) the description of the Significant
Originator's origination program includes (a) experience in originating
mortgage loans, (b) size and composition of the Significant Originator's
origination portfolio, and (c) the Significant Originator's credit-granting
or underwriting criteria for the mortgage loans; (iv) except as set forth
in the Originator Disclosure, no additional information regarding the
Significant Originator's origination program could have a material adverse
affect in the performance of the pool assets or the Offered Certificates;
and (v) the Originator Disclosure is true and correct in all material
respects and nothing has come to his or her attention that that would lead
such officer to believe that the Originator Disclosure contains any untrue
statement of material fact or omits to state a material fact necessary to
make the statements therein not misleading.
(p) The Underwriter shall have received a certificate (upon which
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., SunTrust Mortgage, Inc., Washington Mutual
Bank, and ▇▇▇▇▇ Fargo Bank, N.A. (each a "Significant Servicer" and
together the "Significant Servicers") and the Master Servicer in which such
officer shall state that, to the best of such officer's knowledge after
reasonable investigation: (i) the Significant Servicer or Master Servicer
is not an affiliate of any other entity listed as a transaction party in
the Prospectus Supplement; (ii) the information in the Prospectus
Supplement related to the Significant Servicer or Master Servicer (the
"Servicer Disclosure") includes (a) the Significant Servicer's or Master
Servicer's correct name and form of organization, (b) the correct length of
time that the Significant Servicer or Master Servicer has been servicing
mortgage loans; and (c) a discussion of the Significant Servicer's or
Master Servicer's experience in servicing mortgage loans; (iii) except as
set forth in the Servicer Disclosure, (a) there are no other servicers
responsible for calculating or making distributions to the holders of the
Offered Certificates, performing work-outs or foreclosures, or any other
material aspect of servicing the mortgage loans, (b) there have been no
material changes to the Significant Servicer's or Master Servicer's
servicing policies and procedures during the last three years, (c) no
additional information regarding the Significant Servicer's or Master
Servicer's financial condition could have a material affect on performance
of the Offered Certificates, (d) no commingling of funds on deposit in
collection accounts will be permitted by the Significant Servicer or Master
Servicer, (e) no additional information
12
with respect to any special or unique factors involved in servicing the
mortgage loans could have a material affect on performance of the Offered
Certificates, and (f) no additional information with respect to the
Significant Servicer's or Master Servicer's process for handling
delinquencies, losses, bankruptcies and recoveries could have a material
affect on performance of the Offered Certificates; (iv) for any Significant
Servicer or Master Servicer identified in the Prospectus Supplement as
responsible for calculating or making distributions to the holders of the
Offered Certificates, performing work-outs or foreclosures, or any other
material aspect of servicing the mortgage loans, the certifications in
clauses (ii) and (iii) above are made with respect to such Significant
Servicer or Master Servicer; and (v) the Servicer Disclosure is true and
correct in all material respects and nothing has come to his or her
attention that that would lead such officer to believe that the Servicer
Disclosure contains any untrue statement of material fact or omits to state
a material fact necessary to make the statements therein not misleading.
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
the Underwriter in connection with the proposed purchase and sale of the Offered
Certificates.
SECTION 8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless the Underwriter and any person who controls the
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or either of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (1) 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 the
Disclosure Package, or in any amendment thereof or supplement thereto, or arise
out of or are based upon
13
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, (2) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus or any Issuer Information (as defined in Section 12(b))
contained in any Free Writing Prospectus prepared by or on behalf of the
Underwriter or in any Free Writing Prospectus which is required to be filed
pursuant to Section 12(e) or Section 12(g), or the omission or alleged omission
to state a material fact required to make the statements therein, in light of
the circumstances under which they were made, not misleading, which was not
corrected by information subsequently supplied by the Depositor to the
Underwriter at any time prior to the time of sale, and agrees to reimburse the
Underwriter and any 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 and (3) any static pool
information prepared by the Company and incorporated by reference into a
prospectus or Free Writing Prospectus in connection with the offering of the
Offered Certificates, to the extent not included above; provided, however, that
(i) the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made (A)
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for use in
connection with the preparation thereof or (B) in any Current Report or any
amendment or supplement thereof, and (ii) such indemnity with respect to the
Prospectus shall not inure to the benefit of the Underwriter (or any person
controlling the Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Offered Certificates which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Offered Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as amended or supplemented). This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(a) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company 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, 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 12(a)) prepared by or on
behalf of the Underwriter, except that no such indemnity shall be available
for any losses, claims, damages, liabilities or actions in respect thereof
resulting from any error in any Issuer Information (as defined in Section
12(b)) (an "Issuer Error") furnished by the Company 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 the sale of the Offered Certificates to the person asserting
a claim, the Company 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"), and the Underwriter failed to notify such person thereof or to
deliver such
14
person corrected Free Writing Prospectus. This indemnity agreement will be
in addition to any liability which the Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the Prospectus
Supplement in the first sentence of the last paragraph on the cover page,
in the first sentence under the subheading "Risk Factors--Limited
Liquidity" and in the second, third and fifth paragraphs under the heading
"Method of Distribution" constitute the only information furnished in
writing by or on behalf of the Underwriter for inclusion in the documents
referred to in the foregoing indemnity (other than any Free Writing
Prospectus furnished to the Company by the Underwriter).
(b) 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 subparagraph (a), representing the indemnified parties under
subparagraph (a) 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).
(c) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraphs (a) or (b) 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
15
Company or the Underwriter on the grounds of policy or otherwise, the
Company or the Underwriter 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 or the Underwriter 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 the Company or the
Underwriter; and
(ii) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which arise out of or are based upon
any untrue statement or omission of a material fact in any Free
Writing Prospectus, in such proportion as is appropriate to reflect
the relative fault of the Company and the Underwriter 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 or the
Underwriter 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 (c), 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 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 (c). 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 (c), 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 (c).
SECTION 9. [Reserved.]
SECTION 10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and
other statements of the Company and its respective officers 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
16
on behalf of the Underwriter 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 10 shall survive the termination or cancellation of this
Agreement.
SECTION 11. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
This Agreement shall be subject to termination in the absolute discretion
of the Underwriter, by notice given to the Company prior to delivery of and
payment for the Offered Certificates, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared by federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriter, impracticable to market the Offered Certificates.
SECTION 12. 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. 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 12(b)(i), any Free
Writing Prospectus described therein that contains only ABS
Informational and Computational Material, 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
17
Section 12(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 12(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 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 a 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 ("Issuer
Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by
the Underwriter to the Company pursuant to Section 12(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 12(e) by the Company may 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;
18
(iii) any Free Writing Prospectus required to be filed pursuant
to Section 12(e)(iii) 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 Company 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.
(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 12(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 12(e) and 12(g),
neither the Company 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 the Underwriter shall contain the following legend
and any other legend that the Underwriter shall deem necessary or
appropriate:
The depositor 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 depositor has filed
with the SEC for more complete information about the depositor, the
issuing entity and this offering. You may get these documents for free
by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively,
the depositor, any underwriter
19
or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling toll-free ▇-▇▇▇-▇▇▇-▇▇▇▇
or you e-mail a request to
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The securities may not
be suitable for all investors. Banc of America Securities LLC and its
affiliates may acquire, hold or sell positions in these securities, or
in related derivatives, and may have an investment or commercial
banking relationship with the depositor.
The asset-backed securities referred to in these materials, and the
asset pools backing them, are subject to modification or revision
(including the possibility that one or more classes of securities may
be split, combined or eliminated at any time prior to issuance or
availability of a final prospectus) and are offered on a "when, as and
if issued" basis. You understand that, when you are considering the
purchase of these securities, a contract of sale will come into being
no sooner than the date on which the relevant class has been priced
and we have confirmed the allocation of securities to be made to you;
any "indications of interest" expressed by you, and any "soft circles"
generated by us, will not create binding contractual obligations for
you or us.
Because the asset-backed securities are being offered on a "when, as
and if issued" basis, any such contract of sale will terminate, by its
terms, without any further obligation or liability between us, if the
securities themselves, or the particular class to which the contract
relates, are not issued. Because the asset-backed securities are
subject to modification or revision, any such contract also is
conditioned upon the understanding that no material change will occur
with respect to the relevant class of securities prior to the closing
date. If a material change does occur with respect to such class, our
contract will terminate, by its terms, without any further obligation
or liability between us (the "Automatic Termination"). If an Automatic
Termination occurs, we will provide you with revised offering
materials reflecting the material change and give you an opportunity
to purchase such class. To indicate your interest in purchasing the
class, you must communicate to us your desire to do so within such
timeframe as may be designated in connection with your receipt of the
revised offering materials.
The information contained in these materials may be based on
assumptions regarding market conditions and other matters as reflected
herein. Banc of America Securities LLC (the "Underwriter") makes no
representation regarding the reasonableness of such assumptions or the
likelihood that any such assumptions will coincide with actual market
conditions or events,
20
and these materials should not be relied upon for such purposes. The
Underwriter and its affiliates, officers, directors, partners and
employees, including persons involved in the preparation or issuance
of these materials, may, from time to time, have long or short
positions in, and buy and sell, the securities mentioned herein or
derivatives thereof (including options). Information in these
materials is current as of the date appearing on the material only.
Information in these materials regarding any securities discussed
herein supersedes all prior information regarding such securities.
These materials are not to be construed as an offer to sell or the
solicitation of any offer to buy any security in any jurisdiction
where such an offer or solicitation would be illegal.
This free writing prospectus is being delivered to you solely to
provide you with information about the offering of the securities
referred to in this free writing prospectus and to solicit an offer to
purchase the securities, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the securities until
we have accepted your offer to purchase securities. You may withdraw
your offer to purchase securities at any time prior to our acceptance
of your offer.
The information in this free writing prospectus supersedes information
contained in any prior similar free writing prospectus relating to
these securities prior to the time of your commitment to purchase.
This free writing prospectus is not an offer to sell or solicitation
of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
The Company and the Underwriter each agree that any Free Writing Prospectus
prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or
that does not contain Issuer Information shall also contain the following
legend:
Neither the issuer of the securities nor any of its affiliates
prepared, provided, approved or verified any statistical or numerical
information presented herein, although that information may be based
in part on loan level data provided by the issuer or its affiliates.
(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 12 for a period of three years following the
initial bona fide offering of the Certificates.
21
(l) The Underwriter covenants with the Depositor that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates to a prospective purchaser
of Offered Certificates unless such information is preceded or accompanied
by the final Prospectus.
SECTION 13. 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. Notices to BAS shall be
directed to Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇; notices
to the Company shall be directed to it at Banc of America Funding Corporation,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Associate
General Counsel, with a copy to the Treasurer.
SECTION 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriter, 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 15. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS
APPLIES TO THIS AGREEMENT).
SECTION 16. 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
22
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.
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 17. Miscellaneous.
(a) 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.
(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 18. 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 and Servicing
Agreement.
23
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 FUNDING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above.
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
SCHEDULE I
Offered Certificates: Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4,
Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-12,
Class 1-A-13, Class 1-A-14, Class 2-A-R, Class 2-A-1,
Class 2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5,
Class 2-A-6, Class 2-A-7, Class 2-A-8, Class 2-A-9,
Class 2-A-10, Class 2-A-11, Class 2-A-12, Class 2-A-13,
Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4,
Class 4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4,
Class 4-A-5, Class 4-A-6, Class 4-A-7, Class 4-A-8,
Class 30-IO, Class 30-PO, Class B-1, Class B-2 and Class
B-3 Certificates
Registration Statement
File Number: 333-130536
Initial Class Certificate Balance or Notional Amount of Offered Certificates:
Initial Class Certificate
Class Balance or Notional Amount
------------ --------------------------
Class 1-A-1 $ 52,278,000
Class 1-A-2 $ 52,278,000
Class 1-A-3 $ 985,000
Class 1-A-4 $ 17,348,000
Class 1-A-5 $ 1,928,000
Class 1-A-6 $ 20,811,000
Class 1-A-7 $ 15,700,000
Class 1-A-8 $ 15,700,000
Class 1-A-9 $ 3,175,000
Class 1-A-10 $ 53,506,000
Class 1-A-11 $ 13,423,000
Class 1-A-12 $ 267,000
Class 1-A-13 $ 5,000,000
Class 1-A-14 $ 5,000,000
Class 2-A-R $ 100
Class 2-A-1 $ 15,386,000
Class 2-A-2 $ 1,480,000
Class 2-A-3 $ 1,872,000
Class 2-A-4 $ 2,358,000
Class 2-A-5 $ 4,971,000
Class 2-A-6 $ 26,921,000
Class 2-A-7 $ 884,000
Class 2-A-8 $ 370,000
Class 2-A-9 $ 3,563,000
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Class 2-A-10 $ 13,550,000
Class 2-A-11 $ 18,027,000
Class 2-A-12 $ 660,000
Class 2-A-13 $ 564,583
Class 3-A-1 $ 78,704,000
Class 3-A-2 $ 5,170,000
Class 3-A-3 $ 981,000
Class 3-A-4 $ 8,827,000
Class 4-A-1 $ 3,239,000
Class 4-A-2 $ 29,150,000
Class 4-A-3 $ 7,449,000
Class 4-A-4 $183,548,000
Class 4-A-5 $ 12,312,000
Class 4-A-6 $ 59,248,000
Class 4-A-7 $ 5,012,000
Class 4-A-8 $ 11,300,000
Class 30-IO $ 18,479,794
Class 30-PO $ 1,401,033
Class B-1 $ 15,232,000
Class B-2 $ 4,605,000
Class B-3 $ 2,834,000
Purchase Price: $697,958,750.17
Classes of Book-Entry
Certificates: Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4,
Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-12,
Class 1-A-13, Class 1-A-14, Class 2-A-1, Class 2-A-2,
Class 2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-6,
Class 2-A-7, Class 2-A-8, Class 2-A-9, Class 2-A-10,
Class 2-A-11, Class 2-A-12, Class 2-A-13, Class 3-A-1,
Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 4-A-1,
Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5,
Class 4-A-6, Class 4-A-7, Class 4-A-8, Class 30-IO,
Class 30-PO, Class B-1, Class B-2 and Class B-3
Certificates
Description of
Mortgage Loans: A pool of fixed rate, first mortgage loans having an
aggregate principal balance as of the Cut-off Date of
approximately $708,434,175. The Mortgage Loans are
secured by one- to four-family residential properties.
Denominations: The Offered Certificates listed above under Classes of
Book-Entry Certificates will be issued in book-entry
form. Each such Class of Certificates will be evidenced
by one or
I-2
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 1-A-2, Class 1-A-8, Class
1-A-14, Class 2-A-13, Class 2-A-R, Class 30-IO, Class
30-PO, 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 2-A-9 Certificates may be purchased by investors
in minimum denominations of $1,000 and integral
multiples of $1,000. The Class 30-PO, B-1, B-2 and B-3
Certificates may be purchased by investors in minimum
denominations of $25,000 and integral multiples of $1.
Interests in the Class 2-A-13 Certificates may be
purchased in minimum denominations of $564,583.
Interests in the Class 1-A-2, 1-A-8 and 1-A-14 and 30-IO
Certificates may be purchased in minimum denominations
of $1,000,000 (denomination expressed in initial
notional amount) and integral multiples of $1. Interests
in the Class 2-A-R Certificate may be purchased in a
minimum denomination of $100.
Cut-off Date: September 1, 2006.
Pass-Through Rate:
Class Rate
------------ ----
Class 1-A-1 (1)
Class 1-A-2 (2)
Class 1-A-3 6.00%
Class 1-A-4 6.00%
Class 1-A-5 6.00%
Class 1-A-6 6.00%
Class 1-A-7 (3)
Class 1-A-8 (4)
Class 1-A-9 6.00%
Class 1-A-10 6.00%
Class 1-A-11 6.00%
Class 1-A-12 6.00%
Class 1-A-13 (5)
Class 1-A-14 (6)
Class 2-A-R 6.00%
Class 2-A-1 6.00%
Class 2-A-2 6.00%
Class 2-A-3 6.00%
Class 2-A-4 6.00%
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Class Rate
------------ ----
Class 2-A-5 6.00%
Class 2-A-6 6.00%
Class 2-A-7 6.00%
Class 2-A-8 6.00%
Class 2-A-9 6.00%
Class 2-A-10 5.75%
Class 2-A-11 6.00%
Class 2-A-12 6.00%
Class 2-A-13 6.00%
Class 3-A-1 5.75%
Class 3-A-2 5.75%
Class 3-A-3 5.75%
Class 3-A-4 5.75%
Class 4-A-1 6.00%
Class 4-A-2 6.00%
Class 4-A-3 6.00%
Class 4-A-4 6.00%
Class 4-A-5 6.00%
Class 4-A-6 6.00%
Class 4-A-7 6.00%
Class 4-A-8 6.00%
Class 30-IO (7)
Class 30-PO (8)
Class B-1 (9)
Class B-2 (9)
Class B-3 (9)
(1) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-1 Certificates at the rate of 6.000% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 1-A-1
Certificates at a per annum rate equal to (i) 0.750% plus (ii) LIBOR
determined monthly, subject to a minimum rate of 0.750% and a maximum rate
of 6.000%.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-2 Certificates at the rate of 0.000% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 1-A-2
Certificates at a per annum rate equal to (i) 5.250% minus (ii) LIBOR
determined monthly, subject to a minimum rate of 0.000% and a maximum rate
of 5.250%
(3) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-7 Certificates at the rate of 5.760% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 1-A-7
Certificates at a per annum rate equal to (i) 0.430% plus (ii) LIBOR
determined monthly, subject to a minimum rate of 0.430% and a maximum rate
of 6.000%.
(4) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-8 Certificates at the rate of 0.240% per annum. During each
Interest Accrual Period thereafter, interest will
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accrue on the Class 1-A-8 Certificates at a per annum rate equal to (i)
5.570% minus (ii) LIBOR determined monthly, subject to a minimum rate of
0.000% and a maximum rate of 5.570%.
(5) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-13 Certificates at the rate of 6.000% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-13 Certificates at a per annum rate equal to (i) 0.750% plus (ii) LIBOR
determined monthly, subject to a minimum rate of 0.750% and a maximum rate
of 6.000%.
(6) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-14 Certificates at the rate of 0.000% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-14 Certificates at a per annum rate equal to (i) 5.250% minus (ii)
LIBOR determined monthly, subject to a minimum rate of 0.000% and a maximum
rate of 5.250%.
(7) The Class 30-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of four
Components: the Class 1-30-IO, Class 2-30-IO, Class 3-30-IO and Class
4-30-IO Components. The Components of the Class 30-IO Certificates are not
severable.
(8) The Class 30-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of two
Components: the Class 1-30-PO and Class 3-30-PO Components. The Components
of the Class 30-PO Certificates are not severable. The Class 1-30-PO and
Class 3-30-PO Components are Principal Only Components and will not be
entitled to distributions in respect of interest.
(9) Interest will accrue on the Class B Certificates for each Distribution Date
at a per annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of (i) with respect to Loan Group
1, 6.000%, (ii) with respect to Loan Group 2, 6.000%, (iii) with respect to
Loan Group 3, 5.750% and (iv) with respect to Loan Group 4, 6.000%.
Certificate Ratings:
Class ▇▇▇▇▇'▇ Fitch S&P
------------ ------- ----- ----
Class 1-A-1 Aaa AAA AAA
Class 1-A-2 Aaa AAA AAA
Class 1-A-3 Aa1 AAA AAA
Class 1-A-4 Aaa AAA AAA
Class 1-A-5 Aaa AAA AAA
Class 1-A-6 Aaa AAA AAA
Class 1-A-7 Aaa AAA AAA
Class 1-A-8 Aaa AAA AAA
Class 1-A-9 Aaa AAA AAA
Class 1-A-10 Aaa AAA AAA
Class 1-A-11 Aaa AAA AAA
Class 1-A-12 Aaa AAA AAA
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Class ▇▇▇▇▇'▇ Fitch S&P
------------ ------- ----- ----
Class 1-A-13 Aaa AAA AAA
Class 1-A-14 Aaa AAA AAA
Class 2-A-R None AAA AAA
Class 2-A-1 Aaa AAA AAA
Class 2-A-2 Aaa AAA AAA
Class 2-A-3 Aaa AAA AAA
Class 2-A-4 Aaa AAA AAA
Class 2-A-5 Aaa AAA AAA
Class 2-A-6 Aaa AAA AAA
Class 2-A-7 Aa1 AAA AAA
Class 2-A-8 Aaa AAA AAA
Class 2-A-9 Aaa AAA AAA
Class 2-A-10 Aaa AAA AAA
Class 2-A-11 Aaa AAA AAA
Class 2-A-12 Aaa AAA AAA
Class 2-A-13 Aaa AAA AAA
Class 3-A-1 Aaa AAA AAA
Class 3-A-2 Aaa AAA AAA
Class 3-A-3 Aaa AAA AAA
Class 3-A-4 Aaa AAA AAA
Class 4-A-1 Aaa AAA AAA
Class 4-A-2 Aaa AAA AAA
Class 4-A-3 Aa1 AAA AAA
Class 4-A-4 Aaa AAA AAA
Class 4-A-5 Aaa AAA AAA
Class 4-A-6 Aaa AAA AAA
Class 4-A-7 Aa1 AAA AAA
Class 4-A-8 Aaa AAA AAA
Class 30-IO Aaa AAA AAA
Class 30-PO Aaa AAA AAA
Class B-1 None AA None
Class B-2 None A None
Class B-3 None BBB None
I-6
SCHEDULE II
DISCLOSURE PACKAGE
1. None
II-I
