Exhibit 1.1
--------------
EXECUTION COPY
--------------
BANC OF AMERICA FUNDING CORPORATION
$618,218,285
(Approximate)
Mortgage Pass-Through Certificates,
Series 2007-7
August 30, 2007
UNDERWRITING AGREEMENT
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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") approximately $618,218,285 aggregate Class
Certificate Balance of its Mortgage Pass-Through Certificates identified in
Schedule I hereto (the "Offered Certificates") having the Initial Class
Certificate Balances, Initial Notional Amounts or Maximum 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 Balances,
Initial Notional Amounts or Maximum Initial Class Certificate Balances). The
Offered Certificates, together with the Class 3-B-4, 3-B-5, 3-B-6, X-B-4, X-B-5
and X-B-6 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
August 30, 2007, 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 certain of 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 August 30, 2007 (the "Pooling and Servicing Agreement"), among the
Company, as depositor, U.S. Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and as securities administrator (the "Securities Administrator"). 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 August 30, 2007, by
and between BAS, as purchaser, and the Company (the "Purchase Agreement") are
collectively referred to herein as the "Basic Documents."
Capitalized terms used herein that are not otherwise defined herein have
the meanings assigned thereto in the Pooling and Servicing Agreement.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(the file number of which is set forth in Schedule I hereto), which has become
effective, for the registration under the Act of the Offered Certificates. Such
registration statement, as amended to the date of this Agreement, meets the
requirements set forth in Rule 415(a)(l) under the Act and complies in all other
material respects with Rule 415(a)(1). The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form of
prospectus included in such registration statement relating to the Offered
Certificates and the plan of distribution thereof and a revised form of
prospectus (the "Revised Basic Prospectus") and has previously advised you of
all further information (financial and other) with respect to the Company to be
set forth therein. Such registration statement, including the exhibits thereto,
as amended to the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in the
Registration Statement, as revised by the Revised Basic Prospectus, is
hereinafter called the "Basic Prospectus"; and such supplement to the Basic
Prospectus, in the form in which it shall be filed with the Commission pursuant
to Rule 424, is hereinafter called the "Prospectus Supplement" and, collectively
with the Basic Prospectus, the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus or
the Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) At or prior to the filing dates set forth in Schedule II hereto (the
"Relevant Dates"), the Company prepared the information (collectively, the
"Disclosure Package") listed in Schedule II hereto. If, subsequent to the date
of this Agreement, the Company or the Underwriter has determined that such
information included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and have terminated
their old purchase contracts and entered into new purchase contracts with
purchasers of the Offered Certificates, then "Disclosure Package" will refer to
2
the information available to purchasers at the time of entry into the first such
new purchase contract, including any information that corrects such material
misstatements or omissions ("Corrective Information").
(c) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, will comply in all material respects with the
Act and the respective rules thereunder, (ii) the Registration Statement, as
amended as of any such time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and (iii) the
Final Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriter specifically for use in connection
with the preparation of the Registration Statement or the Final Prospectus.
(d) Each item in the Disclosure Package, at the related Relevant Date did
not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to the information contained in or omitted from the
Disclosure Package or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of the Underwriter specifically for use in connection with the
preparation of the Disclosure Package.
(e) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware and has corporate and other
power and authority to own its properties and conduct its business, as now
conducted by it, and to enter into and perform its obligations under this
Agreement and the other Basic Documents to which it is a party.
(f) The Company is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Basic Prospectus or for
any additional information or (ii) the issuance by the Commission of any stop
order 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
3
terms, subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership and similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law), and except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public policy.
(h) The Company is not, and on the date on which the first bona fide offer
of the Offered Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
(i) On the Closing Date, the Basic Documents will conform to the
description thereof contained in the Registration Statement, the Final
Prospectus and the Disclosure Package; the Offered Certificates will have been
duly and validly authorized and, when such Offered Certificates are duly and
validly executed, issued and delivered in accordance with the Pooling and
Servicing Agreement, and sold to the Underwriter as provided herein, will be
validly issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(j) As of the Closing Date, the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct.
(k) Neither the execution and delivery by the Company of this Agreement or
any other of the Basic Documents nor the consummation by the Company of the
transactions contemplated herein or therein, nor the issuance of the Offered
Certificates or the public offering thereof as contemplated in the Final
Prospectus or the Disclosure Package will conflict in any material respect with
or result in a material breach of, or constitute a material default (with notice
or passage of time or both) under, or result in the imposition of any lien,
pledge, charge, of the property or assets of the Company (except as required or
permitted pursuant thereto or hereto), pursuant to any material mortgage,
indenture, loan agreement, contract or other instrument to which the Company is
party or by which it is bound, nor will such action result in any violation of
any provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or by-laws of
the Company. The Company is not in violation of its certificate of
incorporation, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease,
trust agreement, transfer and servicing agreement or other instrument to which a
party or by 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.
4
(n) Any taxes, fees and other governmental charges in connection with the
execution and delivery of the Basic Documents and the execution, delivery and
sale of the Offered Certificates have been or will be paid at or prior to the
Closing Date.
(o) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and delivery
by the Company of any Basic Document or the performance by the Company of any or
(ii) the offer, sale or delivery of the Offered Certificates except such as
shall have been obtained or made, as the case may be, or will be obtained or
made, as the case may be, prior to the Closing Date, or will not materially
adversely affect the ability of the Company to perform its obligations under any
Basic Document.
(p) The Company possesses, and will possess, all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Preliminary Prospectus, if any, Final
Prospectus and the Disclosure Package, except to the extent that the failure to
have such licenses, certificates, authorities or permits does not have a
material adverse effect on the Offered Certificates or the financial condition
of the Company, and the Company has not received, nor will have received as of
each Closing Date, any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of its business,
operations or financial condition.
(q) On the Closing Date, (i) the Company will have good and marketable
title to the related Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, (ii) the Company will not have
assigned to any person any of its right, title or interest in such Mortgage
Loans or in the Pooling and Servicing Agreement, and (iii) the Company will have
the power and authority to sell such Mortgage Loans to the Trust, and upon
execution and delivery of the Pooling and Servicing Agreement by the Trustee,
the Company, the Master Servicer and the Securities Administrator, the Trust
will have good and marketable title thereto, in each case free of liens.
(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").
5
(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 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 & Xxxxxxxx LLP, Charlotte, North Carolina, at 10:00 A.M.,
Eastern time, on August 30, 2007, 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.
(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
6
effect from and including the relevant implementation date, make an offer of
Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance
sheet of more than (euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(iii) in any other circumstances which do not require the publication
by the issuer of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this representation, the expression an "offer of
Certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Certificates to be
offered so as to enable an investor to decide to purchase or subscribe the
Certificates, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
"Prospectus Directive" means the European Commission Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
It has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the United Kingdom
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of the Offered Certificates in circumstances
in which Section 21(1) of the FSMA does not apply to the issuing entity.
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
7
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and will use its best efforts to
cause any required post-effective amendment to the Registration Statement
containing such amendment to be made effective as soon as possible.
(c) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, executed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by the Underwriter or dealers may be required by the Act, as many
copies of the Final Prospectus and any amendments thereof and supplements
thereto as the Underwriter may reasonably request. The Company will pay the
expenses of printing all documents relating to the initial offering, 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:
8
(a) The Underwriter shall have received from Deloitte & Touche LLP (i) a
letter, dated the date hereof, confirming that they are independent public
accountants within the meaning of the Act and the rules and regulations of the
Commission promulgated thereunder and otherwise in form and substance reasonably
satisfactory to the Underwriter and counsel to the Underwriter and (ii) if
requested by the Underwriter, a letter dated the Closing Date, updating the
letter referred to in clause (i) above, in form and substance reasonably
satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by
the Company under the Act prior to the sale of the Offered Certificates shall
have been duly taken and made. At and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or the Underwriter, shall have been contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company,
any Servicer or the Master Servicer which, in the reasonable judgment of the
Underwriter, materially impairs the investment quality of the Offered
Certificates; (ii) any downgrading in the ratings of the securities of any
Servicer or the Master Servicer by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its ratings of any securities of any Servicer or the
Master Servicer (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in 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 the Securities Administrator, dated the
Closing Date, in form and substance satisfactory to the Underwriter and counsel
for the Underwriter.
9
(f) The Underwriter shall have received an opinion of Hunton & Xxxxxxxx
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 & Xxxxxxxx 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 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 &
Xxxxxxxx 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)
10
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 &
Xxxxxxxx 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.
(o) The Underwriter shall have received a certificate (upon which Hunton &
Xxxxxxxx LLP shall be entitled to rely in rendering its opinions and letters
under the Basic Documents) dated the Closing Date of an officer of each of
SunTrust Mortgage, Inc., Xxxxxx, Bean & Xxxxxxxx Mortgage Corp. and Washington
Mutual Bank (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) such 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 such Significant Originator (the "Originator Disclosure") includes
such Significant Originator's correct name, form of organization and length of
time originating mortgage loans; (iii) the description of such Significant
Originator's origination program includes (a) experience in originating mortgage
loans, (b) size and composition of such Significant Originator's origination
portfolio, and (c) such 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 such Significant Originator's
origination program could have a material adverse affect in the performance of
the pool assets or the Offered Certificates; and (v) such 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. The
requirement to provide a certificate pursuant to the preceding sentence shall be
deemed satisfied if such Significant Originator represents and warrants that the
Originator Disclosure satisfies the relevant provisions of Regulation AB under
the Act.
(p) The Underwriter shall have received a certificate (upon which Hunton &
Xxxxxxxx LLP shall be entitled to rely in rendering its opinions and letters
under the Basic Documents) dated the Closing Date of an officer of SunTrust
11
Mortgage, Inc. and Washington Mutual Bank (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) such 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 such Significant Servicer or Master Servicer (the "Servicer Disclosure")
includes (a) such Significant Servicer's or Master Servicer's correct name and
form of organization, (b) the correct length of time that such Significant
Servicer or Master Servicer has been servicing mortgage loans; and (c) a
discussion of such 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 such Significant Servicer's or Master
Servicer's servicing policies and procedures during the last three years, (c) no
additional information regarding such 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 such 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 such
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 requirement to provide a certificate pursuant to the preceding sentence
shall be deemed satisfied if such Significant Servicer or Master Servicer
represents and warrants that the Servicer Disclosure satisfies the relevant
provisions of Regulation AB under the Act.
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.
12
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.
(a) 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 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 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 Final 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
13
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.
(b) The Underwriter agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Underwriter, but only with reference to (A) written information relating to
the Underwriter furnished to the Company by or on behalf of the Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity, or (B) any Free Writing Prospectus (as defined in Section
12(a)) prepared by or on behalf of the Underwriter, except that no such
indemnity shall be available for any losses, claims, damages, liabilities or
actions in respect thereof resulting from any error in any Issuer Information
(as defined in Section 12(b)) (an "Issuer Error") furnished by the Company to
the Underwriter in writing or by electronic transmission that was used in the
preparation of any Free Writing Prospectus, other than an Issuer Error as to
which, prior to the time of the sale of the Offered Certificates to the person
asserting a claim, the Company notified the Underwriter in writing of the Issuer
Error or provided in written or electronic form information superseding or
correcting such Issuer Error (in any such case, a "Corrected Issuer Error"), and
the Underwriter failed to notify such person thereof or to deliver such 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).
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission 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
14
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).
(d) 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 (d), 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
15
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 (d). 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 (d), 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 (d).
SECTION 9. [Reserved.]
SECTION 10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and
other statements of the Company and its respective officers and of the
Underwriter set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or 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.
16
(b) (i) The Underwriter shall deliver to the Company, no later than two
business days prior to the date of first use thereof, (A) any Free Writing
Prospectus prepared by or on behalf of the Underwriter that contains any "issuer
information," as defined in Rule 433(h) under the Act ("Issuer Information"),
and (B) any Free Writing Prospectus or portion thereof that contains only a
description of the final terms of the Certificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any Free
Writing Prospectus described therein that contains only ABS Informational
and Computational Material, may be delivered by the Underwriter to the
Company not later than the later of (a) two business days prior to the due
date for filing of the Prospectus pursuant to Rule 424(b) under the Act or
(b) the date of first use of such Free Writing Prospectus.
(c) The Underwriter represents and warrants to the Company that the Free
Writing Prospectuses to be furnished to the Company by the Underwriter pursuant
to 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:
17
(i) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Certificates may be filed by the Company within two days of the later of
the date such final terms have been established for all classes of
Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be
filed that contains only ABS Informational and Computational Material may
be filed by the Company with the Commission not later than the later of the
due date for filing the Final Prospectus relating to the Certificates
pursuant to Rule 424(b) under the Act or two business days after the first
use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed pursuant to
Section 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.
18
(j) The Company and the Underwriter each agree that any Free Writing
Prospectuses prepared by the Underwriter shall contain the following legend and
any other legend that the Underwriter shall deem necessary or appropriate:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed
with the SEC for more complete information about the depositor, the
issuing entity and this offering. You may get these documents for free
by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. 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
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. 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.
19
The information contained in these materials may be based on
assumptions regarding market conditions and other matters as reflected
herein. Banc of America Securities LLC (the "Underwriter") makes no
representation regarding the reasonableness of such assumptions or the
likelihood that any such assumptions will coincide with actual market
conditions or events, and these materials should not be relied upon
for such purposes. The Underwriter and its affiliates, officers,
directors, partners and employees, including persons involved in the
preparation or issuance of these materials, may, from time to time,
have long or short positions in, and buy and sell, the securities
mentioned herein or derivatives thereof (including options).
Information in these materials is current as of the date appearing on
the material only. Information in these materials regarding any
securities discussed herein supersedes all prior information regarding
such securities. These materials are not to be construed as an offer
to sell or the solicitation of any offer to buy any security in any
jurisdiction where such an offer or solicitation would be illegal.
This free writing prospectus is being delivered to you solely to
provide you with information about the offering of the securities
referred to in this free writing prospectus and to solicit an offer to
purchase the securities, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the securities until
we have accepted your offer to purchase securities. You may withdraw
your offer to purchase securities at any time prior to our acceptance
of your offer.
The information in this free writing prospectus supersedes information
contained in any prior similar free writing prospectus relating to
these securities prior to the time of your commitment to purchase.
This free writing prospectus is not an offer to sell or solicitation
of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
The Company and the Underwriter each agree that any Free Writing Prospectus
prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or
that does not contain Issuer Information shall also contain the following
legend:
Neither the issuer of the securities nor any of its affiliates
prepared, provided, approved or verified any statistical or numerical
information presented herein, although that information may be based
in part on loan level data provided by the issuer or its affiliates.
(k) The Company and the Underwriter agree to retain all Free Writing
Prospectuses that they have used and that are not required to be filed pursuant
to this Section 12 for a period of three years following the initial bona fide
offering of the Certificates.
20
(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, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxx. with a
copy to Bank of America Legal Department, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Associate General
Counsel; notices to the Company shall be directed to it at Banc of America
Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxx, with a copy to: Bank of America Legal
Department, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Associate General Counsel.
SECTION 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriter, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Offered Certificates from the Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 15. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS
APPLIES TO THIS AGREEMENT).
SECTION 16. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Offered
Certificates pursuant to this Agreement, including the determination of the
public offering price of the Offered Certificates and any related discounts and
commissions, is an arm's-length commercial transaction between the Company, on
the one hand, and the Underwriter on the other hand, and the Company is capable
of evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction the Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company or its affiliates,
stockholders, creditors or employees or any other party; (iii) the Underwriter
has not assumed, nor will it assume, an advisory or fiduciary responsibility in
favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether the Underwriter has
advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement; (iv) the Underwriter and its affiliates may be engaged in a broad
21
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.
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/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
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/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Principal
SCHEDULE I
Offered Certificates: Class 0-X-0, 0-X-0, 0-X-0, 0-X-X, 0-X-0, 0-X-0, 2-A-3,
3-A-1, 3-A-2, 3-A-3, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0,
0-X-0, 3-A-10, 3-A-11, 3-A-12, 3-A-13, 3-A-14, 3-A-15,
3-A-16, 30-IO, 30-PO, X-X-0, X-X-0, X-X-0, X-X-0, 0-X-0,
0-X-0 and 3-B-3 Certificates.
Registration Statement
File Number: 333-130536
Ratings
Pass-Through
Class Initial Class Balance Rate S&P Fitch DBRS
Class 1-A-R....... $100 6.0000% AAA AAA AAA
Class 1-A-1....... $95,148,000 6.0000% AAA AAA AAA
Class 1-A-2....... $11,760,000 6.0000% AAA AAA AAA
Class 1-A-3....... $106,908,000 6.0000% AAA AAA AAA
Class 2-A-1....... $38,840,000 6.0000% AAA AAA AAA
Class 2-A-2....... $2,261,000 6.0000% AAA AAA AAA
Class 2-A-3....... $41,101,000 6.0000% AAA AAA AAA
Class 3-A-1....... $207,278,000 (1) AAA AAA AAA
Class 3-A-2....... $14,784,000 (1) AAA AAA AAA
Class 3-A-3....... $100,000,000 (1) AAA AAA AAA
Class 3-A-4....... $49,700,000 (1) AAA AAA AAA
Class 3-A-5....... $16,537,000 (1) AAA AAA AAA
Class 3-A-6....... $16,538,000 (1) AAA AAA AAA
Class 3-A-7....... $13,857,000 (1) AAA AAA AAA
Class 3-A-8....... $6,928,000 (1) AAA AAA AAA
Class 3-A-9....... $6,929,000 (1) AAA AAA AAA
Class 3-A-10...... $127,714,000 (1) AAA AAA AAA
Class 3-A-11...... $63,557,000 (1) AAA AAA AAA
Class 3-A-12...... $23,465,000 (1) AAA AAA AAA
Class 3-A-13...... $23,467,000 (1) AAA AAA AAA
Class 3-A-14...... $87,022,000 (1) AAA AAA AAA
Class 3-A-15...... $46,932,000 (1) AAA AAA AAA
Class 3-A-16...... $110,489,000 (1) AAA AAA AAA
Class 30-IO....... $5,339,347 6.0000%(2) AAA AAA AAA
Class 30-PO....... $3,255,185 (3) AAA AAA AAA
Class C-A-1....... $14,021,000 6.0000% AAA AAA AAA
Class X-B-1....... $5,763,000 6.0000% AA None AA
Class X-B-2....... $800,000 6.0000% A None A
Class X-B-3....... $481,000 6.0000% BBB None BBB
Class 3-B-1....... $19,340,000 (1) AA None AA
Class 3-B-2....... $5,188,000 (1) A None A
Class 3-B-3....... $2,831,000 (1) BBB None BBB
(1) Interest will accrue on these Certificates at a per annum rate equal to the
weighted average of the Net Mortgage Interest Rates of the Group 3 Mortgage
Loans (based on the Stated Principal Balances of the Group 3 Mortgage Loans
on the due date in the month preceding the month of such Distribution
Date).
I-1
(2) The Class 30-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of two
Components: the Class 1-30-IO Component and the Class 2-30-IO Component.
The Components of the Class 30-IO Certificates are not severable.
(3) The Class 30-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of two
Components: the Class 1-30-PO Component and the Class 2-30-PO Component.
The Components of the Class 30-PO Certificates are not severable. The Class
1-30-PO and Class 2-30-PO Components are principal only Components and will
not be entitled to distributions in respect of interest.
Purchase Price: $614,500,624.98.
Classes of Book-Entry
Certificates: Class 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 3-A-1,
3-A-2, 3-A-3, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0,
3-A-10, 3-A-11, 3-A-12, 3-A-13, 3-A-14, 3-A-15, 3-A-16,
30-IO, 30-PO, X-X-0, X-X-0, X-X-0, X-X-0, 0-X-0, 0-X-0 and
3-B-3 Certificates.
Description of Mortgage
Loans: Three loan groups of fixed rate, first-lien mortgage loans
having an aggregate principal balance as of the Cut-off Date
of approximately $631,771,917. 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, Initial Notional Amount or Maximum
Initial Class Certificate Balance of such Class. Interests
in the Class 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0,
3-A-1, 3-A-2, 3-A-3, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0,
0-X-0, 3-A-10, 3-A-11, 3-A-12, 3-A-13, 3-A-14, 3-A-15,
3-A-16 and C-A-1 Certificates may be purchased by investors
in minimum denominations of $1,000 and integral multiples of
$1. Interests in the Class 30-IO Certificates may be
purchased in minimum denominations of $1,000,000
(denomination expressed in initial notional amount) and
integral multiples of $1. Interests in the Class 30-PO,
X-X-0, X-X-0, X-X-0, 0-X-0, 3-B-2 and 3-B-3 Certificates may
be purchased in minimum denominations of $25,000 and
integral multiples of $1. Interests in the Class 1-A-R
Certificate may be purchased in a minimum denomination of
$100.
Cut-off Date: August 1, 2007.
I-2
SCHEDULE II
DISCLOSURE PACKAGE
1. None.
II-1
