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EXECUTION COPY
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BANC OF AMERICA FUNDING CORPORATION
$713,655,943
(Approximate)
Mortgage Pass-Through Certificates,
Series 2006-6
September 27, 2006
UNDERWRITING AGREEMENT
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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") $713,655,943 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 (or, with respect to each
class of Exchangeable REMIC or Exchangeable Certificates, the Maximum Initial
Class Certificate Balance or Maximum Initial Notional Amount) 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 (or, with
respect to each class of Exchangeable REMIC or Exchangeable Certificates, the
Maximum Initial Class Certificate Balance or Maximum 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.
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(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 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
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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 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
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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 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
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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.
(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."
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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 offices 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.
(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
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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.
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
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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, 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
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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 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 an opinion of reasonably
acceptable counsel to the Securities Administrator, dated the Closing
Date, each in form and substance satisfactory to the Underwriter and
counsel for the Underwriter.
(f) The Underwriter shall have received an opinion of Hunton &
▇▇▇▇▇▇▇▇ 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
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Final Prospectus.
(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
Hunton & ▇▇▇▇▇▇▇▇ 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
Hunton & ▇▇▇▇▇▇▇▇ 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-
11
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 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
Hunton & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an
officer of ▇.▇. ▇▇▇▇▇▇ Chase Bank, National Association, 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
Hunton & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an
officer of ▇.▇. ▇▇▇▇▇▇ Chase Bank, National Association, 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
12
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 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
13
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 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
14
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 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).
15
(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 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.
16
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 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.
17
(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 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)
18
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 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
19
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 or any
dealer participating in the offering will arrange to
send you the prospectus if you request it by calling
toll-free 1-800-294-1322 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
20
"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, 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.
21
(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.
(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
22
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.
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-R, 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 1-A-15, Class
1-A-16, Class 1-A-17, Class 1-A-18, Class
1-A-19, Class 1-A-20, Class 1-A-21, Class
1-A-22, Class 1-A-23, Class 1-A-24, Class 2-A-1,
Class 2-A-2, Class 2-A-3, Class 2-A-4, Class
3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4,
Class 30-IO, Class 30-PO, Class M, Class B-1,
Class B-2 and Class B-3 Certificates
Registration Statement
File Number: 333-130536
Initial Class Certificate Balance, Maximum Class Certificate Balance or Notional
Amount of Offered Certificates:
Initial Class Certificate
Balance, Maximum Class
Certificate Balance or
Class Notional Amount
----------------- -------------------------------
Class 1-A-1 $62,329,200
Class 1-A-2 $80,000,000
Class 1-A-3 $20,352,800
Class 1-A-4 $20,352,800
Class 1-A-5 $15,000,000
Class 1-A-6 $15,000,000
Class 1-A-7 $21,229,000
Class 1-A-8 $ 291,000
Class 1-A-9 $ 3,917,000
Class 1-A-10 $35,256,000
Class 1-A-11 $ 1,566,920
Class 1-A-12 $86,049,000
Class 1-A-13 $10,600,000
Class 1-A-14 $21,834,000
Class 1-A-15 $ 499,000
Class 1-A-16 $19,679,000
Class 1-A-17 $ 4,739,320
Class 1-A-18 $ 3,585,375
Class 1-A-19 $ 441,666
Class 1-A-20 $96,649,000
Class 1-A-21 $96,649,000
Class 1-A-22 $86,049,000
Class 1-A-23 $10,600,000
I-1
Class 1-A-24 $ 39,173,000
Class 1-A-R $ 100
Class 2-A-1 $194,310,400
Class 2-A-2 $ 46,755,600
Class 2-A-3 $ 48,577,600
Class 2-A-4 $ 1,822,000
Class 3-A-1 $ 52,720,000
Class 3-A-2 $ 52,720,000
Class 3-A-3 $ 1,833,000
Class 3-A-4 $ 16,501,000
Class 30-IO $ 12,022,121
Class 30-PO $ 408,843
Class M $ 10,057,000
Class B-1 $ 4,669,000
Class B-2 $ 4,669,000
Class B-3 $ 2,874,000
Purchase Price: $715,204,209.48
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 1-A-15, Class 1-A-16, Class
1-A-17, Class 1-A-18, Class 1-A-19, Class
1-A-20, Class 1-A-21, Class 1-A-22, Class
1-A-23, Class 1-A-24, Class 2-A-1, Class 2-A-2,
Class 2-A-3, Class 2-A-4, Class 3-A-1, Class
3-A-2, Class 3-A-3, Class 3-A-4, Class 30-IO,
Class 30-PO, Class M, 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 $718,325,324. 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 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-R, Class 1-A-4, Class 1-A-6, Class
1-A-11, Class 1-A-17, Class 1-A-18, Class
1-A-19, Class 2-A-3, Class 3-A-2, Class 30-IO,
Class 30-PO, Class M, Class B-
I-2
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 30-PO, Class M, Class
B-1, Class B-2 and Class B-3 Certificates may be
purchased by investors in minimum denominations
of $25,000 and integral multiples of $1.
Interests in the Class 1-A-4, Class 1-A-6, Class
1-A-11, Class 1-A-17, Class 1-A-18, Class 2-A-3,
Class 3-A-2, and Class 30-IO Certificates may be
purchased by investors in minimum denominations
of $1,000,000 and integral multiples of $1.
Interests in the Class 1-A-19 Certificate may
each be purchased by investors in a minimum
denomination of $441,666. Interests in the Class
1-A-R Certificate may each be purchased in a
minimum denomination of $100.
Cut-off Date: September 1, 2006.
Pass-Through Rate:
Class Rate
-----------------------------------------------------
Class 1-A-1 5.750%
Class 1-A-2 6.250%
Class 1-A-3 (1)
Class 1-A-4 (2)
Class 1-A-5 (3)
Class 1-A-6 (4)
Class 1-A-7 6.250%
Class 1-A-8 6.250%
Class 1-A-9 6.000%
Class 1-A-10 6.000%
Class 1-A-11 6.250%
Class 1-A-12 5.750%
Class 1-A-13 5.750%
Class 1-A-14 6.000%
Class 1-A-15 6.250%
Class 1-A-16 6.250%
Class 1-A-17 6.250%
Class 1-A-18 6.000%
Class 1-A-19 6.000%
Class 1-A-20 5.750%
Class 1-A-21 6.000%
Class 1-A-22 6.000%
Class 1-A-23 6.000%
Class 1-A-24 6.250%
Class 1-A-R 6.250%
Class 2-A-1 6.000%
I-3
Class Rate
-----------------------------------------------------
Class 2-A-2 (5)
Class 2-A-3 (6)
Class 2-A-4 (7)
Class 3-A-1 (8)
Class 3-A-2 (9)
Class 3-A-3 6.000%
Class 3-A-4 6.000%
Class 30-IO (10)
Class 30-PO (11)
Class M (12)
Class B-1 (12)
Class B-2 (12)
Class B-3 (12)
(1) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-3 Certificates at the rate of 5.700% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-3 Certificates at a per annum rate equal to (i) 0.370% plus (ii)
LIBOR, subject to a minimum rate of 0.370% and a maximum rate of 7.000%.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-4 Certificates at the rate of 1.300% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-4 Certificates at a per annum rate equal to (i) 6.630% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 6.630%.
(3) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-5 Certificates at the rate of 5.640% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-5 Certificates at a per annum rate equal to (i) 0.310% plus (ii)
LIBOR, subject to a minimum rate of 0.310% and a maximum rate of 7.310%.
(4) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-6 Certificates at the rate of 1.670% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-6 Certificates at a per annum rate equal to (i) 7.000% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 7.000%.
(5) During the initial Interest Accrual Period, interest will accrue on the
Class 2-A-2 Certificates at the rate of 5.730% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
2-A-2 Certificates at a per annum rate equal to (i) 0.400% plus (ii)
LIBOR, subject to a minimum rate of 0.400% and a maximum rate of 7.500%.
(6) During the initial Interest Accrual Period, interest will accrue on the
Class 2-A-3 Certificates at the rate of 1.770% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
2-A-3 Certificates at a per annum rate equal to (i) 7.100% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 7.100%.
(7) During the initial Interest Accrual Period, interest will accrue on the
Class 2-A-4 Certificates at the rate of 5.730% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
2-A-4 Certificates at a per annum rate equal to (i) 0.400% plus (ii)
LIBOR, subject to a minimum rate of 0.400% and a maximum rate of 7.500%.
I-4
(8) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-1 Certificates at the rate of 5.930% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-1 Certificates at a per annum rate equal to (i) 0.600% plus (ii)
LIBOR, subject to a minimum rate of 0.600% and a maximum rate of 6.000%.
(9) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-2 Certificates at the rate of 0.070% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-2 Certificates at a per annum rate equal to (i) 5.400% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 5.400%.
(10) The Class 30-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of three
Components: the Class 1-30-IO, Class 2-30-IO and Class 3-30-IO Components.
The Components of the Class 30-IO Certificates are not severable.
(11) The Class 30-PO Certificates are Principal Only Certificates and will not
be entitled to distributions in respect of interest.
(12) Interest will accrue on the Class M Certificates and 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, 6.250%, (ii) with respect to Loan Group 2,
6.300% and (iii) with respect to Loan Group 3, 6.000%.
I-5
Certificate Ratings:
Class ▇▇▇▇▇'▇ Fitch S&P
------------ ------- ----- ----
Class 1-A-1 Aaa AAA AAA
Class 1-A-2 Aaa AAA AAA
Class 1-A-3 Aaa 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
Class 1-A-13 Aaa AAA AAA
Class 1-A-14 Aaa AAA AAA
Class 1-A-15 Aaa AAA AAA
Class 1-A-16 Aaa AAA AAA
Class 1-A-17 Aaa AAA AAA
Class 1-A-18 Aaa AAA AAA
Class 1-A-19 Aaa AAA AAA
Class 1-A-20 Aaa AAA AAA
Class 1-A-21 Aaa AAA AAA
Class 1-A-22 Aaa AAA AAA
Class 1-A-23 Aaa AAA AAA
Class 1-A-24 Aaa AAA AAA
Class 1-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 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 30-IO Aaa AAA AAA
Class 30-PO Aaa AAA AAA
Class M Aa2 AA+ AA
Class B-1 None AA None
Class B-2 None A None
Class B-3 None BBB None
I-6
SCHEDULE II
-----------
DISCLOSURE PACKAGE
------------------
None
II-1
