Exhibit 10.1
BANC OF AMERICA FUNDING CORPORATION
$479,549,013
(Approximate)
Mortgage Pass-Through Certificates,
Series 2006-1
January 30, 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") $479,549,013 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
set forth in Schedule I (subject to an upward or downward variance, not to
exceed 5%, of the precise initial Class Certificate Balance within such range to
be determined by the Company in its sole discretion). The Offered Certificates,
together with six 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 January 31, 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 January 31, 2006 (the "Pooling Agreement"), among the
Company, as depositor, ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the "Master
Servicer") and as securities administrator (the "Securities Administrator"), 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 Agreement, this Agreement, the Mortgage Loan Purchase Agreement and the
purchase agreement, to be dated January 31, 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 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") with such changes to the form of prospectus which
appears in the Registration Statement as are necessary to comply with the
requirements of Regulation AB under the Act (17 C.F.R. Subpart 229, Items
1100-1123) 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 time when sales to investors of the Securities
were first made, as set forth in Schedule I hereto (the "Pricing Date"),
the Company had prepared the information (collectively, the "Disclosure
Package") listed in Schedule III 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
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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 Securities, 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) The Disclosure Package, at the Pricing 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.
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(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 Securities will have been duly
and validly authorized and, when such Securities are duly and validly
executed, issued and delivered in accordance with the Pooling Agreement,
and sold to the Underwriter as provided herein, will be validly issued and
outstanding and entitled to the benefits of the Pooling Agreement.
(j) As of the Closing Date, the representations and warranties of the
Company set forth in the Pooling 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 Securities 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 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 Securities 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
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the Securities 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
Securities 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 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 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 Agreement and the offering and sale of the
Securities, 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 Securities in the manner contemplated by this Agreement to
qualify the Pooling 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 Securities 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.
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(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 Offered Certificates set
forth in Schedule II hereto, at the applicable 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 January 31, 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.
SECTION 4. Offering by the Underwriter. 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.
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
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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, 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:
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(a) The Underwriter shall have received from PricewaterhouseCoopers
LLP (i) a letter, dated the date hereof, confirming that they are
independent public accountants within the meaning of the Act and the rules
and regulations of the Commission promulgated thereunder and otherwise in
form and substance reasonably satisfactory to the Underwriter and counsel
to the Underwriter and (ii) if requested by the Underwriter, a letter dated
the Closing Date, updating the letter referred to in clause (i) above, in
form and substance reasonably satisfactory to the Underwriter and counsel
for the Underwriter.
(b) All actions required to be taken and all filings required to be
made by the Company under the Act prior to the sale of the Offered
Certificates shall have been duly taken and made. At and prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company or
the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company, 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 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 Securities Administrator,
dated the Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter.
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(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.
(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 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 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
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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 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.
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(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 Residential Funding Corporation, 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 Securities; 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 Residential Funding Corporation, 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 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
12
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 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
13
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, any Computational Materials, Collateral Term
Sheets or ABS Term Sheets furnished to the Company by the Underwriter
pursuant to Section 12 and incorporated by reference in the Registration
Statement or the Final Prospectus, 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, Computational Materials,
Collateral Term Sheets or ABS Term Sheets, 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 person corrected Free Writing Prospectus, Computational
14
Materials, Collateral Term Sheets and/or ABS Term Sheets, as applicable.
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, Computational Materials,
Collateral Term Sheets or ABS Term Sheets 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
15
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.
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
16
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;
(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 issuer has filed a registration statement (including a prospectus)
with the SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that registration
statement and other documents the issuer has filed with the SEC for
more complete information about the issuer and this offering. You may
get these documents for free by visiting ▇▇▇▇▇ on the SEC Web site at
▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, the underwriter or any dealer
participating
19
in the offering will arrange to send you the prospectus if you request
it by calling toll-free ▇-▇▇▇-▇▇▇-▇▇▇▇. The securities may not be
suitable for all investors. The underwriter 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 issuer.
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.
Because the asset-backed securities are being offered on a "when, as and if
issued" basis, any 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.
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. We will not
accept any offer by you to purchase the securities, and you will not have any
contractual commitment to purchase any of the securities until after you have
received the preliminary prospectus. 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:
20
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.
(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
21
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 respect
to any of the transactions contemplated hereby or the process leading thereto
(irrespective of whether the Underwriter has advised or is currently advising
the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement; (iv) the Underwriter and its
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and that the Underwriter has no
obligation to disclose any of such interests by virtue of any fiduciary or
advisory relationship; and (v) the Underwriter has not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
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 Agreement.
22
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 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 1-A-25, Class
1-A-26, Class 1-A-27, Class 1-A-28, Class
2-A-1, Class 2-A-2, Class 3-A-1, Class 3-A-2,
Class 3-A-R, Class X-IO Class X-PO, Class B-1,
Class B-2, Class B-3, Class X-B-1, Class X-B-2
and Class X-B-3 Certificates
Registration Statement
File Number: 333-121599
Initial Class Certificate Balance of Offered Certificates:
Initial Class
Class Certificate Balance
------------ -------------------
Class 1-A-1 $ 12,759,000
Class 1-A-2 $ 3,320,000
Class 1-A-3 $ 579,000
Class 1-A-4 $ 4,342,000
Class 1-A-5 $ 2,000,000
Class 1-A-6 $ 2,000,000
Class 1-A-7 $ 118,000
Class 1-A-8 $ 1,057,000
Class 1-A-9 $ 1,000,000
Class 1-A-10 $ 18,759,000
Class 1-A-11 $ 1,524,000
Class 1-A-12 $ 3,701,000
Class 1-A-13 $ 1,008,000
Class 1-A-14 $ 1,008,000
Class 1-A-15 $ 775,000
Class 1-A-16 $ 775,000
Class 1-A-17 $ 775,000
Class 1-A-18 $ 3,000,000
Class 1-A-19 $ 3,000,000
Class 1-A-20 $ 28,000,000
Class 1-A-21 (1)
Class 1-A-22 $ 2,621,000
Class 1-A-23 $ 50,178,000
Class 1-A-24 $ 6,023,000
Class 1-A-25 $ 41,542,000
I-1
Class 1-A-26 (2)
Class 1-A-27 $ 27,041,000
Class 1-A-28 $ 35,000,000
Class 2-A-1 $105,137,000
Class 2-A-2 $ 4,324,000
Class 3-A-1 $ 92,989,000
Class 3-A-2 $ 3,373,000
Class 3-A-R $ 100
Class X-IO (3)
Class X-PO (4)
Class B-1 $ 2,923,000
Class B-2 $ 687,000
Class B-3 $ 344,000
Class X-B-1 $ 7,535,000
Class X-B-2 $ 2,021,000
Class X-B-3 $ 1,287,000
(1) The Class 1-A-21 Certificates are Interest Only Certificates, have no class
balance and will bear interest on their notional amount (initially approximately
$28,000,000) as described in the Prospectus Supplement.
(2) The Class 1-A-26 Certificates are Interest Only Certificates, have no class
balance and will bear interest on their notional amount (initially approximately
$3,914,825) as described in the Prospectus Supplement.
(3) The Class X-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of three Components:
the Class 1-X-IO, Class 2-X-IO and Class 3-X-IO Components. The Components of a
class are not severable. The initial notional amount of the Class X-IO
Certificates will be approximately $9,635,484.
(4) The Class X-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of three
Components: the Class 1-X-PO, Class 2-X-PO and Class 3-X-PO Components. The
Components of a class are not severable. The initial class balance of the Class
X-PO Certificates will be approximately $7,023,913.
Purchase Price: $475,698,819.56
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 1-A-25, Class
1-A-26, Class 1-A-27, Class 1-A-28, Class
2-A-1,
I-2
Class 2-A-2, Class 3-A-1, Class 3-A-2, Class
X-IO Class X-PO, Class B-1, Class B-2, Class
B-3, Class X-B-1, Class X-B-2 and Class X-B-3
Certificates
Description of Mortgage Loans: Three groups of fixed rate, first mortgage
loans having an aggregate principal balance as
of the Cut-off Date of approximately
$482,144,195. The Mortgage Loans are secured by
one- to four-family residential properties.
Denominations: The Offered Certificates listed above under
Classes of Book-Entry Certificates (except the
Class 3-A-5 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 3-A-R, Class 1-A-21, Class 1-A-26,
Class X-IO, Class X-PO, Class B-1, Class B-2,
Class B-3, Class X-B-1, Class X-B-2 and Class
X-B-3 Certificates) may be purchased by
investors in minimum denominations of $1,000
and integral multiples of $1. The Class X-PO,
Class B-1, Class B-2, Class B-3, Class X-B-1,
Class X-B-2 and Class X-B-3 Certificates may be
purchased by investors in minimum denominations
of $25,000 and integral multiples of $1.
Interests in the Class X-IO Certificates may be
purchased in minimum denominations of
$1,000,000 and integral multiples of $1.
Interests in the Class 1-A-21 and Class 1-A-26
Certificate may each be purchased in a minimum
denomination of $1,000,000.
Cut-off Date: January 1, 2006.
Pass-Through Rate:
Class Rate
------------ -----
Class 1-A-1 5.750%
Class 1-A-2 5.750%
Class 1-A-3 5.750%
Class 1-A-4 5.750%
Class 1-A-5 5.500%
Class 1-A-6 6.000%
Class 1-A-7 5.750%
Class 1-A-8 5.750%
Class 1-A-9 5.750%
I-3
Class Rate
------------ -----
Class 1-A-10 5.750%
Class 1-A-11 5.750%
Class 1-A-12 5.750%
Class 1-A-13 5.250%
Class 1-A-14 6.250%
Class 1-A-15 5.750%
Class 1-A-16 5.750%
Class 1-A-17 5.750%
Class 1-A-18 5.500%
Class 1-A-19 6.000%
Class 1-A-20 (A)
Class 1-A-21 (B)
Class 1-A-22 5.750%
Class 1-A-23 5.750%
Class 1-A-24 5.750%
Class 1-A-25 5.750%
Class 1-A-26 5.750%
Class 1-A-27 5.500%
Class 1-A-28 5.300%
Class 2-A-1 5.500%
Class 2-A-2 5.500%
Class 3-A-1 5.500%
Class 3-A-2 5.500%
Class 3-A-R 5.500%
Class X-IO (C)
Class X-PO (D)
Class B-1 5.500%
Class B-2 5.500%
Class B-3 5.500%
Class X-B-1 (E)
Class X-B-2 (E)
Class X-B-3 (E)
(A) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-20 Certificates at the rate of 5.390% per annum. During each Interest
Accrual Period thereafter, interest will accrue on the Class 1-A-20 Certificates
at a per annum rate equal to (i) 0.900% plus (ii) the arithmetic mean of the
London interbank offered rate quotations for one-month U.S. dollar deposits
("LIBOR") determined monthly as set forth in the prospectus supplement, subject
to a minimum rate of 0.900% and a maximum rate of 5.750%. In addition, the Class
1-A-20 Certificates will be entitled to amounts received under a yield
maintenance agreement.
(B) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-21 Certificates at the rate of 0.360% per annum. During each Interest
Accrual Period thereafter, interest will accrue on the Class 1-A-21 Certificates
at a per annum rate equal to (i) 4.850%
I-4
minus (ii) LIBOR determined monthly as set forth in this prospectus supplement,
subject to a minimum rate of 0.000% and a maximum rate of 4.850%.
(C) The Class X-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of three Components:
the Class 1-X-IO, Class 2-X-IO and Class 3-X-IO Components. The Components of a
class are not severable. The initial notional amount of the Class X-IO
Certificates will be approximately $9,635,484.
(D) The Class X-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of three
Components: the Class 1-X-PO, Class 2-X-PO and Class 3-X-PO Components. The
Components of a class are not severable. The initial class balance of the Class
X-PO Certificates will be approximately $7,023,913.
(E) Interest will accrue on the Class X-B Certificates for each Distribution
Date at a per annum rate equal to the weighted average (based on the Group
Subordinate Amount for Loan Group 1 and Loan Group 3) of (i) with respect to
Loan Group 1, 5.750% and (ii) with respect to Loan Group 3, 5.500%. For the
initial Distribution Date in February 2006, this rate is expected to be
approximately 5.68183% per annum.
Certificate Ratings:
Class ▇▇▇▇▇'▇ Fitch
----- ------- -----
Class 1-A-1 Aaa AAA
Class 1-A-2 Aaa AAA
Class 1-A-3 Aaa AAA
Class 1-A-4 Aaa AAA
Class 1-A-5 Aaa AAA
Class 1-A-6 Aaa AAA
Class 1-A-7 Aaa AAA
Class 1-A-8 Aaa AAA
Class 1-A-9 Aaa AAA
Class 1-A-10 Aaa AAA
Class 1-A-11 Aaa AAA
Class 1-A-12 Aaa AAA
Class 1-A-13 Aaa AAA
Class 1-A-14 Aaa AAA
Class 1-A-15 Aaa AAA
Class 1-A-16 Aaa AAA
Class 1-A-17 Aaa AAA
Class 1-A-18 Aaa AAA
Class 1-A-19 Aaa AAA
Class 1-A-20 Aaa AAA
Class 1-A-21 Aaa AAA
Class 1-A-22 Aaa AAA
Class 1-A-23 Aaa AAA
Class 1-A-24 Aaa AAA
I-5
Class ▇▇▇▇▇'▇ Fitch
----- ------- -----
Class 1-A-25 Aaa AAA
Class 1-A-26 Aaa AAA
Class 1-A-27 Aaa AAA
Class 1-A-28 Aaa AAA
Class 2-A-1 Aaa AAA
Class 2-A-2 Aa1 AAA
Class 3-A-1 Aaa AAA
Class 3-A-2 Aa1 AAA
Class 3-A-R None AAA
Class X-IO Aaa AAA
Class X-PO Aaa AAA
Class B-1 None AA
Class B-2 None A
Class B-3 None BBB
Class X-B-1 None AA
Class X-B-2 None A
Class X-B-3 None BBB
I-6
SCHEDULE II
Class Banc of America Securities LLC
------------ ------------------------------
Class 1-A-1 $ 12,759,000
Class 1-A-2 $ 3,320,000
Class 1-A-3 $ 579,000
Class 1-A-4 $ 4,342,000
Class 1-A-5 $ 2,000,000
Class 1-A-6 $ 2,000,000
Class 1-A-7 $ 118,000
Class 1-A-8 $ 1,057,000
Class 1-A-9 $ 1,000,000
Class 1-A-10 $ 18,759,000
Class 1-A-11 $ 1,524,000
Class 1-A-12 $ 3,701,000
Class 1-A-13 $ 1,008,000
Class 1-A-14 $ 1,008,000
Class 1-A-15 $ 775,000
Class 1-A-16 $ 775,000
Class 1-A-17 $ 775,000
Class 1-A-18 $ 3,000,000
Class 1-A-19 $ 3,000,000
Class 1-A-20 $ 28,000,000
Class 1-A-21 (1)
Class 1-A-22 $ 2,621,000
Class 1-A-23 $ 50,178,000
Class 1-A-24 $ 6,023,000
Class 1-A-25 $ 41,542,000
Class 1-A-26 (2)
Class 1-A-27 $ 27,041,000
Class 1-A-28 $ 35,000,000
Class 2-A-1 $105,137,000
Class 2-A-2 $ 4,324,000
Class 3-A-1 $ 92,989,000
Class 3-A-2 $ 3,373,000
Class 3-A-R $ 100
Class X-IO (3)
Class X-PO (4)
Class B-1 $ 2,923,000
Class B-2 $ 687,000
Class B-3 $ 344,000
Class X-B-1 $ 7,535,000
Class X-B-2 $ 2,021,000
Class X-B-3 $ 1,287,000
II-1
(1) The Class 1-A-21 Certificates are Interest Only Certificates, have no class
balance and will bear interest on their notional amount (initially approximately
$28,000,000) as described in the Prospectus Supplement.
(2) The Class 1-A-26 Certificates are Interest Only Certificates, have no class
balance and will bear interest on their notional amount (initially approximately
$3,914,825) as described in the Prospectus Supplement.
(3) The Class X-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of three Components:
the Class 1-X-IO, Class 2-X-IO and Class 3-X-IO Components. The Components of a
class are not severable. The initial notional amount of the Class X-IO
Certificates will be approximately $9,635,484.
(4) The Class X-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of three
Components: the Class 1-X-PO, Class 2-X-PO and Class 3-X-PO Components. The
Components of a class are not severable. The initial class balance of the Class
X-PO Certificates will be approximately $7,023,913.
II-2
SCHEDULE III
DISCLOSURE PACKAGE
1. Free Writing Prospectus, in the form of spreadsheets containing information
on the mortgage loans in the form of collateral tape information, filed and
accepted by the SEC on January 30, 2006, with a filing date of January 30,
2006 and accession number 0000950136-06-000540.
2. Free Writing Prospectus, in the form spreadsheets containing information on
the mortgage loans in the form of collateral tape information, filed and
accepted by the SEC on January 20, 2006, with a filing date of January 23,
2006 and accession number 0000950136-06-000334.
III-1
