Exhibit 1.1
UNDERWRITING AGREEMENT
New York, New York
March 24, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Securities, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Asset Backed Funding Corporation (the "Company"), proposes to sell to
the underwriters named in Schedule II hereto (collectively, the "Underwriters"
and each, an "Underwriter") the principal amount of the ABFC Mortgage Loan
Asset-Backed Certificates, Series 2003-WF1, identified in Schedule I hereto (the
"Securities"), to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement") to be dated March 1, 2003, among the Company,
as depositor, Xxxxx Fargo Home Mortgage, Inc., as servicer and originator
(referred to herein as the "Servicer"), Bank One, N.A., as trustee (the
"Trustee") and Xxxxx Fargo Bank Minnesota, National Association, as securities
administrator (the "Securities Administrator").
Each class of Securities listed in Schedule I hereto will represent an
undivided beneficial ownership interest in the ABFC 2003-WF1 Trust (the
"Trust"). The assets of the Trust will include, among other things, a pool of
conventional fixed and adjustable rate one-to-four-family first-lien residential
mortgage loans (the "Mortgage Loans") transferred to the Company pursuant to a
mortgage loan purchase agreement to be dated March 27, 2003 (the "Mortgage Loan
Purchase Agreement"), between Bank of America ("BofA") and the Company, and by
the Company to the Trust pursuant to the Pooling and Servicing Agreement. This
Underwriting Agreement shall hereinafter be referred to as the "Agreement." This
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreement are collectively hereinafter referred to as the "Basic Documents."
Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (the file number of which is set forth in Schedule I hereto), which
has been declared effective by the Commission,
for the registration under the Act of the Securities. Such registration
statement, as amended to the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all other material
respects with said Rule. The Company proposes to file with the Commission
pursuant to Rule 424 under the Act a supplement to the form of prospectus
included in such registration statement relating to the Securities and the plan
of distribution thereof and has previously advised the Underwriters of all
further information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits thereto, as
amended to the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called 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 pursuant to Item 12 of Form S-3
under the Act.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date (as hereinafter defined), (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 requirements of the Act and the respective rules and
regulations 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 (A) 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 any Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus or (B) the
Current Report (as defined in Section 5(b) below), or in any amendment thereof
or supplement thereto, incorporated by reference in the Registration Statement
or the Final Prospectus (or any amendment thereof or supplement thereto).
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(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing 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.
(d) The Company is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Basic Prospectus or
for any additional information or (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose.
(e) This Agreement has been duly authorized, executed and delivered by
the Company, and the other Basic Documents, 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.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally but
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule II hereto, the principal amount or percentage interest of the
Securities set forth opposite such Underwriter's name therein.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Underwriters and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Underwriters for their
respective accounts against payment by the Underwriters of the purchase price
thereof in the manner set forth in Schedule II hereto. If Schedule I indicates
that the Securities are to be issued in book-entry form, delivery of the
Securities shall be made through the facilities of the depository or
depositories set forth on Schedule I. Alternatively, certificates for the
Securities shall be registered in such names and in such denominations as the
Underwriters may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Underwriters in New York, New York, not later than
1:00 p.m., New York City time, on the business day prior to the Closing Date.
4. Offering by the Underwriters. It is understood by the parties hereto
that, after the Registration Statement becomes effective, the Underwriters
propose to offer the Securities for sale to the public (which may include
selected dealers) as set forth in the Final Prospectus.
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5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities,
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 to each Underwriter a copy for its review prior to filing
and will not file any such proposed amendment or supplement to which such
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 Underwriters 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 Securities
shall have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities 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) The Company will use its best efforts to cause any
Computational Materials, Collateral Term Sheets and ABS Term Sheets (each as
defined in Section 10 below) with respect to the Securities which are delivered
by the Underwriters to the Company pursuant to Section 10 to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report") pursuant to
Rule 13a-11 under the Exchange Act not later than the business day immediately
following the day on which such Computational Materials, Collateral Term Sheets
or ABS Term Sheets are delivered to counsel for the Company by the Underwriters
as provided in Section 10, and will promptly advise the Underwriters when such
Current Report has been so filed. Such Current Report shall be incorporated by
reference in the Final Prospectus and the Registration Statement.
Notwithstanding the two preceding sentences, the Company shall have no
obligation to file materials provided by the Underwriters pursuant to Section 10
which, in the reasonable determination of the Company after making reasonable
efforts to consult with the Underwriters, are not required to be filed pursuant
to the No-Action Letters (as defined in Section 10 below), or which contain
erroneous information or contain any untrue statement of a material fact or,
which, when read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Computational Materials, Collateral Term Sheets or ABS Term Sheets
provided by the Underwriters to the Company pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the Securities
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,
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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; provided, however, that the Company
will not be required to file any such amendment or supplement with respect to
any Computational Materials incorporated by reference in the Final Prospectus
other than any amendments or supplements of such Computational Materials that
are furnished to the Company pursuant to Section 10(d) hereof which the Company
determines to file in accordance therewith.
(d) The Company will furnish to the Underwriters and counsel for
the Underwriters, 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 Underwriters or dealer may be required by the Act, as many
copies of the Final Prospectus and any amendments thereof and supplements
thereto (other than exhibits to the related Current Report) as the Underwriters
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 required, will be borne by Banc of America
Securities LLC.
(e) The Company will furnish such information as may be required
and otherwise cooperate in qualifying the Securities for sale under the laws of
such jurisdictions as the Underwriters may reasonably designate and to maintain
such qualifications in effect so long as required for the distribution of the
Securities; 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.
(f) The Company will pay all expenses (other than fees of counsel
for the Underwriters, except as provided herein) incident to the performance of
the obligations under this Underwriting Agreement, including:
(i) the word processing, printing and filing of the
Registration Statement as originally filed and of each amendment
thereto;
(ii) the reproduction of this Underwriting Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities to the Underwriters;
(iv) the fees and disbursements of counsel and accountants
for the Company;
(v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 5(e) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection
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therewith and in connection with the preparation of a blue sky survey,
if requested by the Underwriters;
(vi) if requested by the Underwriters, the determination of
the eligibility of the Securities for investment and the reasonable
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of a legal investment
memorandum;
(vii) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Basic Prospectus
and Final Prospectus and any amendments or supplements thereto;
(viii) if requested by the Underwriters, the printing and
delivery to the Underwriters of copies of any blue sky or legal
investment memorandum;
(ix) the fees of any rating agency rating the Securities; and
(x) the fees and expenses of the Trustee, the Securities
Administrator, the Servicer and their counsel.
6. Conditions Precedent to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) The Underwriters shall have received from Deloitte & Touche
LLP a letter, dated the date hereof, confirming that they are independent public
accountants within the meaning of the Act and the Rules and Regulations and
otherwise in form and substance reasonably satisfactory to the Underwriters and
counsel for the Underwriters.
(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 Securities shall
have been duly taken or 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 Underwriters, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or the Servicer which, in the reasonable judgment of the
Underwriters, materially impairs the investment quality of the Securities; (ii)
any downgrading in the rating of the securities of the Company by any
"nationally recognized statistical rating organization" (as such term is defined
for purposes of Rule 436(g)
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under the Act), or any public announcement that any such organization has under
surveillance or review its rating of any securities of the Company (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, New York or North Carolina 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
Underwriters, 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 Securities.
(d) The Underwriters shall have received a favorable opinion of
counsel to the Servicer addressed to the Underwriters, dated the Closing Date in
form and substance reasonably satisfactory to the Underwriters and their
counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of
Hunton & Xxxxxxxx, special tax counsel for the Company, addressed to the
Underwriters, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters, generally to the effect that (i) the information
in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final
Prospectus under "Material Federal Income Tax Consequences," insofar as such
information describes federal statutes and regulations or otherwise constitute
matters of law or legal conclusions of the statutes or regulations of such
jurisdiction have been prepared or reviewed by such counsel, and such
information is correct in all material respects; and (ii) assuming compliance
with all of the provisions of the Pooling and Servicing Agreement, the
applicable portions of the Trust will qualify as one or more REMICs, and the
portion of the Trust exclusive of such REMICs will constitute a grantor trust,
pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code") for
federal income tax purposes as of the Closing Date and will continue to qualify
as one or more REMICs and as a grantor trust for so long as the Trust continues
to meet the requirements set forth in the Code and applicable Treasury
regulations.
(f) The Underwriters shall have received a favorable opinion of
Hunton & Xxxxxxxx, special counsel for the Company, addressed to the
Underwriters, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters, with respect to the validity of the Certificates,
ERISA matters and such other related matters as the Underwriters shall require,
and the Company shall have furnished or caused to be furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of
counsel for BofA, addressed to the Underwriters, dated the Closing Date and
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, with respect to such matters as the Underwriters may
require.
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(h) The Underwriters shall have received a favorable opinion of
counsel for each of the Trustee and the Securities Administrator, in each case
addressed to the Underwriters, dated the Closing Date and reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the
Closing Date of the President, any Vice President or the Secretary of the
Company in which the officer shall state that, to the best of his or her
knowledge after reasonable investigation, (i) the representations and warranties
of the Company with respect to the Mortgage Loans contained in any Basic
Document are true and correct, (ii) the representations and warranties of the
Company in this Agreement are true and correct, (iii) 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, (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued, (v)
no proceedings for that purpose have been instituted or are contemplated by the
Commission, and (vi) there has been no amendment or other document filed
affecting the Certificate of Incorporation or bylaws of the Company, and no such
amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have
received evidence satisfactory to the Underwriters that each class of Securities
has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Final Prospectus.
(l) The Underwriters 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 Hunton &
Xxxxxxxx, counsel for the Underwriters, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Securities, 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 Underwriters, 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.
(n) At the Closing Date, the Underwriters shall have received from
Hunton & Xxxxxxxx, counsel for the Underwriters, a letter with respect to the
Final Prospectus, in form and substance satisfactory to the Underwriters.
The Company will provide or cause to be provided to the Underwriters
such conformed copies of such opinions, certificates, letters and documents as
the Underwriters may reasonably request.
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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 Underwriters.
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 Underwriters 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 hereof.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters 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 any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls each 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 any 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 any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the Basic Prospectus or
the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon an 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, and agree to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (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 therein (A) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for use in connection with the preparation thereof or (B) in any
Current Report or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein results (or is alleged
to have resulted) directly from an error (a "Collateral Error") in the
information concerning the Mortgage Loans furnished by the Company to any
Underwriter in writing or by electronic transmission that was used in the
preparation of any Computational Materials, Collateral Term Sheets or ABS Term
Sheets included in such Current Report (or amendment or supplement thereof),
(ii) such indemnity with respect to the Basic Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or
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liability purchased the Securities 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 Securities 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), and
(iii) such indemnity with respect to any Collateral Error shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any loss, claim, damage or liability received any
Computational Materials, Collateral Term Sheets or ABS Term Sheets that were
prepared on the basis of such Collateral Error, if, prior to the time of
confirmation of the sale of the Securities to such person, the Company notified
such Underwriter in writing of the Collateral Error or provided in written or
electronic form information superseding or correcting such Collateral Error (in
any such case, a "Corrected Collateral Error"), and such Underwriter failed to
notify such person thereof or to deliver such person corrected Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets, as applicable. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and its officers who sign 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 each Underwriter, but only with reference to (A) written
information relating to such Underwriter furnished to the Company by such
Underwriter specifically for use in the preparation of the documents referred to
in the foregoing indemnity, or (B) any Computational Materials, Collateral Term
Sheets or ABS Term Sheets furnished to the Company by or on behalf of such
Underwriter pursuant to Section 10 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 or liabilities, or actions in
respect thereof resulting from any Collateral Error, other than a Corrected
Collateral Error). This indemnity agreement will be in addition to any liability
which the Underwriters may otherwise have. The Company acknowledges that the
statements set forth in (i) the first sentence of the last paragraph on the
front cover of the Final Prospectus and (ii) in the first sentence of the second
and third paragraphs under the heading "Method of Distribution" in the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to in the
foregoing indemnity (other than any Computational Materials, Collateral Term
Sheets or ABS Term Sheets furnished to the Company by any Underwriter), and each
Underwriter confirms that such statements are correct.
(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
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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 (exclusive of any
local counsel), approved by the Underwriters 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 paragraph (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 Underwriters on the grounds
of policy or otherwise, the Company and the Underwriters 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 and one or more of the Underwriters 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 Computational Materials, Collateral Term Sheets or ABS Term
Sheets, in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting
compensation received by them bears to the sum of such underwriting
compensation and the purchase price of the Securities specified in
Schedule II hereto and the Company is responsible for the balance;
provided, however, that in no case shall any Underwriter be responsible
under this subparagraph (i) for any amount in excess of the
underwriting compensation applicable to the Securities purchased by
such Underwriter hereunder; 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
Computational Materials, Collateral Term Sheets or ABS Term Sheets, in
such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in
-11-
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 Computational Materials, Collateral Term Sheets or ABS
Term Sheets results from information prepared by the Company on the one
hand or the Underwriters on the other and that party's 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 an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, 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 (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).
9. Default by One or More of the Underwriters. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder (the "Defaulted
Securities") and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the non-defaulting
Underwriter or Underwriters shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the non-defaulting Underwriter or Underwriters shall not
have completed such arrangements within such 24-hour period, then the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the non-defaulting Underwriter or Underwriters shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may
-12-
be effected. No action taken pursuant to this Section 9 shall relieve any
defaulting Underwriter from its liability in respect of its default.
10. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., New York City time, on a date no
later than four business days before delivery of the Final Prospectus to the
Underwriters, the Underwriters shall deliver to the Company five complete copies
of all materials provided by the Underwriters to prospective investors in the
Securities which constitute either (i) "Computational Materials" within the
meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and together with the Xxxxxx Letters, the "No-Action Letters"), if
the filing of such materials with the Commission is a condition of the relief
granted in such letters. In the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, if such
Collateral Term Sheets have not previously been delivered to the Company as
contemplated by Section 10(b)(i) below, five complete copies of such Collateral
Term Sheets shall be delivered by the Underwriters to the Company no later than
10:30 a.m., New York City time, on the first business day following the date on
which such Collateral Term Sheets were initially provided to a potential
investor. Each delivery of Computational Materials, Collateral Term Sheets
and/or ABS Term Sheets to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for the Company
on behalf of the Company at the address specified in Section 13 hereof and one
copy of such materials to the Company.
(b) Each Underwriter, severally and not jointly, represents and
warrants to and agrees with the Company, as of the date hereof and as of the
Closing Date, that:
(i) if such Underwriter has provided any Collateral Term
Sheets to potential investors in the Securities prior to the date
hereof and if the filing of such materials with the Commission is a
condition of the relief granted in the PSA Letter, then in each such
case such Underwriter delivered four copies of such materials to
counsel for the Company on behalf of the Company at the address
specified in Section 13 hereof and one copy of such materials to the
Company no later than 10:30 a.m., New York City time, on the first
business day following the date on which such materials were initially
provided to a potential investor;
(ii) the Computational Materials (either in original,
aggregated or consolidated form), Collateral Term Sheets and ABS Term
Sheets furnished to the Company pursuant to Section 10(a) or as
contemplated in Section 10(b)(i) constitute all of the materials
furnished to prospective investors by such Underwriter (whether in
written, electronic or other format) prior to the time of delivery
thereof to the Company with respect to the Securities in accordance
with the No-Action Letters, and such
-13-
Computational Materials, Collateral Term Sheets and ABS Term Sheets
comply with the requirements of the No-Action Letters;
(iii) except as resulting directly from any Collateral Error,
on the respective dates any such Computational Materials, Collateral
Term Sheets and/or ABS Term Sheets with respect to the Securities were
last furnished to each prospective investor by such Underwriter and on
the date of delivery thereof to the Company pursuant to this Section 10
and on the Closing Date, such Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets did not and will not include any untrue
statement of a material fact, or, when read in conjunction with the
Final Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(iv) all Computational Materials, Collateral Term Sheets and
ABS Term Sheets prepared by such Underwriter contained and will contain
a legend, prominently displayed on the first page thereof, to the
effect that the Company has not prepared, reviewed or participated in
the preparation of such Computational Materials, Collateral Term Sheets
or ABS Term Sheets, is not responsible for the accuracy thereof and has
not authorized the dissemination thereof;
(v) all Collateral Term Sheets with respect to the Securities
furnished to potential investors by such Underwriter contained and will
contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by
the description of the Mortgage Loans contained in the Final Prospectus
and, except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term
Sheets; and
(vi) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials,
Collateral Term Sheets, ABS Term Sheets or other materials relating to
the Securities (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a Final
Prospectus prior to or at the same time as the delivery of such
Computational Materials, Collateral Term Sheets, ABS Term Sheets or
other materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials, Collateral Term Sheets or
ABS Term Sheets included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the Company of
notice of such Corrected Collateral Error or materials superseding or correcting
such Collateral Error).
(c) Each Underwriter acknowledges and agrees that the Company has
not authorized and will not authorize the distribution of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets to any prospective
investor, and agree that any Computational Materials, Collateral Term Sheets or
ABS Term Sheets with respect to the Securities furnished to prospective
investors shall include a disclaimer in the form set forth in paragraph (b)(v)
above. Each Underwriter agrees that they will not represent to investors that
any Computational
-14-
Materials, Collateral Term Sheets and/or ABS Term Sheets were prepared or
disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials, Collateral Term Sheets or ABS
Term Sheets provided by the Underwriters pursuant to this Section 10 or the
omission to state therein a material fact required, when considered in
conjunction with the Final Prospectus, to be stated therein or necessary to make
the statements therein, when read in conjunction with the Final Prospectus, not
misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Act or the rules thereunder, the Underwriters, at
their expense, promptly will prepare and furnish to the Company for filing with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Each Underwriter,
severally and not jointly, represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Final Prospectus, omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Final Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d) or (ii) such filing is not required under the Act.
(e) Each Underwriter (at its own expense) further agrees to
provide to the Company any accountants' letters obtained relating to the
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets, which
accountants' letters shall be addressed to the Company or shall state that the
Company may rely thereon; provided that the Underwriters shall have no
obligation to procure such letter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Securities, 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
Underwriters, impracticable to market the Securities.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters 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 any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will
-15-
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof and this Section 12 shall survive the termination or cancellation
of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Hunton & Xxxxxxxx, Bank of America Plaza,
Suite 3500, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxxxxx, Esquire; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Hearst Tower, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxx.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
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).
16. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by the party against
whom enforcement of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts
each of which shall be deemed an original, which taken together shall constitute
one and the same instrument.
(d) The headings of the Sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
-16-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and each Underwriter.
Very truly yours,
ASSET BACKED FUNDING CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
WACHOVIA SECURITIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
-17-
SCHEDULE I
Underwriting Agreement dated March 24, 2003
Registration Statement No. 333-90830
Title: ABFC Mortgage Loan Asset-Backed Certificates, Series 2003-WF1
Purchase Price and Description of the Securities:
Form of Required
Certificates Principal Balance Pass-Through Rate(1) Certificates Rating Xxxxx'x* Fitch** S&P***
------------ ----------------- -------------------- ------------ --------------- ----- ---
Class A-1 $ 34,443,000 1.902%(2) Book-Entry Aaa AAA AAA
Class A-2 $216,850,000 (3) Book-Entry Aaa AAA AAA
Class M-1 $ 14,609,000 LIBOR + 0.72%(4) Book-Entry Aa2 AA+ AA
Class M-2 $ 11,688,000 LIBOR + 1.75%(4) Book-Entry A2 A+ A+
Class M-3 $ 10,226,000 LIBOR + 3.05%(4) Book-Entry Baa2 BBB BBB+
Class M-4 $ 2,922,000 LIBOR + 3.25%(4) Book-Entry Baa3 BBB- BBB-
------------------------------
(1) The interest accrual period for the Class A-1 Certificates is record
date to record date and the interest accrual period for the Class A-2,
Class M-1, Class M-2, Class M-3 and Class M-4 Certificates is payment
date to payment date.
(2) The Class A-1 Certificates will bear interest at the fixed rate
specified above, subject to an interest rate cap.
(3) The Class A-2 Certificates will bear interest at a fixed rate of 1.982%
for the first 24 months, subject to an interest rate cap. The Class A-2
Certificates will be subject to a mandatory auction in March 2005 and
will be transferred to third party investors. On and after the March
2005 distribution date, the Class A-2 Certificates will accrue interest
at a variable rate equal to one-month LIBOR as of the related LIBOR
determination date plus 0.75% per annum, subject to an interest rate
cap. After the optional termination date the margin rate for the Class
A-2 Certificates will increase to 1.125% per annum.
(4) During each interest accrual period, the Class X-0, Xxxxx X-0, Class
M-3 and Class M-4 certificates will accrue interest at a variable rate
equal to one-month LIBOR as of the related LIBOR determination date
plus the margin rate per annum specified above for that class, in each
case subject to an interest rate cap. After the optional termination
date, the margin rate for the Class X-0, Xxxxx X-0, Class M-3 and Class
M-4 Certificates will increase to 1.5 times their initial margin rates.
* Xxxxx'x Investors Service, Inc.
** Fitch Ratings.
*** Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
Depositories for Book-Entry Certificates: The Depository Trust Company;
Clearstream Banking; Euroclear System
Closing Date, Time and Location: March 27, 2003, 10:00 a.m., New York City time,
Xxxxxx xx Xxxxxx & Xxxxxxxx, Xxxx xx Xxxxxxx Xxxxx, Xxxxx 0000, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
SCHEDULE I - Page 1
SCHEDULE II
Securities
Class A-1
Principal Amount
of Securities
Underwriter % of Total* Purchased** Purchase Price
----------- ----------- ----------- --------------
Banc of America Securities LLC 100% $ 34,433,000 $ 34,433,000
Greenwich Capital Markets, Inc. 0% -0- -0-
Wachovia Securities, Inc. 0% -0- -0-
Total 100% $ 34,433,000 $ 34,433,000
==== ============ ============
------------------------------------------- -------------------- ------------------------------------------
Class A-2
Principal Amount
of Securities
Underwriter % of Total* Purchased** Purchase Price
----------- ----------- ----------- --------------
Banc of America Securities LLC 90% $195,165,000 $195,162,463
Greenwich Capital Markets, Inc. 5% $ 10,842,500 $ 10,842,359
Wachovia Securities, Inc. 5% $ 10,842,500 $ 10,842,359
Total 100% $216,850,000 $216,847,181
==== ============ ============
------------------------------------------- -------------------- ------------------------------------------
Class M-1
Principal Amount
of Securities
Underwriter % of Total* Purchased** Purchase Price
----------- ----------- ----------- --------------
Banc of America Securities LLC 90% $13,148,100 $13,148,100
Greenwich Capital Markets, Inc. 5% $ 730,450 $ 730,450
Wachovia Securities, Inc. 5% $ 730,450 $ 730,450
Total 100% $14,609,000 $14,609,000
==== =========== ===========
------------------------------------------- -------------------- ------------------------------------------
Class M-2
Principal Amount
of Securities
Underwriter % of Total* Purchased** Purchase Price
----------- ----------- ----------- --------------
Banc of America Securities LLC 90% $10,519,200 $10,519,200
Greenwich Capital Markets, Inc. 5% $ 584,400 $ 584,400
Wachovia Securities, Inc. 5% $ 584,400 $ 584,400
Total 100% $11,688,000 $11,688,000
==== =========== ===========
------------------------------------------- -------------------- ------------------------------------------
SCHEDULE II-Page 1
SCHEDULE II
Class M-3
Principal Amount
of Securities
Underwriter % of Total* Purchased** Purchase Price
----------- ----------- ----------- --------------
Banc of America Securities LLC 90% $ 9,203,400 $ 9,203,400
Greenwich Capital Markets, Inc. 5% $ 511,300 $ 511,300
Wachovia Securities, Inc. 5% $ 511,300 $ 511,300
Total 100% $10,226,000 $10,226,000
==== ============ ===========
------------------------------------------- -------------------- -------------------------------------------
Class M-4
Principal Amount
of Securities
Underwriter % of Total* Purchased** Purchase Price
----------- ----------- ----------- --------------
Banc of America Securities LLC 90% $2,922,000 $2,670,550
Greenwich Capital Markets, Inc. 5% -0- -0-
Wachovia Securities, Inc. 5% -0- -0-
Total 100% $2,922,000 $2,670,550
==== ========== ==========
------------------------------------------- -------------------- -------------------------------------------
* As a percentage of the Principal Amount (or Notional Amount) of
Securities Purchased.
** Subject to final Class sizes.
SCHEDULE II-Page 2
