EXHIBIT 1.1
ASSET BACKED FUNDING CORPORATION
$
(Approximate)
ABFC Asset-Backed Certificates,
Series 20 -
[_________], 20
UNDERWRITING AGREEMENT
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. Introductory. Asset Backed Funding Corporation, a
Delaware corporation (the "Company"), proposes to sell to Banc of America
Securities LLC (the "Underwriter"), $______________ aggregate Certificate
Principal Balance of its Asset-Backed Certificates identified in Schedule I
hereto (the "Offered Certificates") having the Original Class Certificate
Principal Balances set forth in Schedule I (subject to an upward or downward
variance, not to exceed 5%, of the precise Original Class Certificate Principal
Balances within such range to be determined by the Company in its sole
discretion). The Offered Certificates, together with the Class M-7, Class CE,
Class P, Class R and Class R-X 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 fund consisting primarily of two
pools of fixed and adjustable-rate mortgage loans, 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"), to be dated as of
[________] 1, 20 , between the Company and Bank of America, National
Association. As of the close of business on the date specified in Schedule I as
the cut-off date (the "Cut-off Date"), the Mortgage Loans will have the
aggregate principal balance set forth in Schedule I. This Underwriting Agreement
shall hereinafter be referred to as the "Agreement." Elections will be made to
treat the segregated pool of assets consisting of the Mortgage Loans and certain
other related assets as multiple separate real estate mortgage investment
conduits (each, a "REMIC"). The Certificates are to be issued pursuant to a
pooling and servicing agreement, to be dated as of [________] 1, 20 (the
"Pooling Agreement"), among the Company, as depositor, [__________________], as
servicer (the "Servicer"), and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the
"Trustee"). The Offered Certificates will be issued in the denominations
specified in Schedule I. The Pooling Agreement, this Agreement, the Mortgage
Loan Purchase Agreement and the purchase agreement, to be dated [________], 20 ,
among Banc of America Securities LLC, as Initial Purchaser and the Company (the
"Purchase Agreement") are collectively referred to herein as the "Basic
Documents."
Capitalized terms used herein that are not otherwise defined herein
have the meanings assigned thereto in the Pooling Agreement.
SECTION 2. Representations and Warranties of the Company. The
Company represents and warrants to the Underwriter as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (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)(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 Offered Certificates and the
plan of distribution thereof and has previously advised the Underwriter 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"; the prospectus first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to
Rule 424(b) under the Act is hereinafter called the "Basic Prospectus";
and such supplement to the Basic Prospectus, in the form required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus
Supplement" and, collectively with the Basic Prospectus, the "Final
Prospectus." Any reference herein to the Registration Statement, the Basic
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement, or
the issue date of the Basic Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus or the Final
Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
(b) At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had
prepared the information (collectively, the "Time of Sale Information")
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 "Time of Sale Information" will refer to the information available to
purchasers at the time of entry into the first such new purchase contract,
including any information that corrects such material misstatements or
omissions ("Corrective Information") and "Time of Sale" will refer to the
time and date on which such new purchase contracts were entered into.
(c) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will comply in
all material respects with the Act and the respective rules thereunder,
(ii) the Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, and (iii) the Final Prospectus, as
amended or supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriter specifically for
use in connection with the preparation of the Registration Statement or
the Final Prospectus.
(d) The Time of Sale Information, at the Time of Sale 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, however, that the Company makes no
representation and warranty with respect to the information contained in
or omitted from the Time of Sale Information 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 Time of
Sale Information.
(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.
(g) This Agreement has been duly authorized, executed and delivered
by the Company, and each of the other Basic Documents to which the Company
is a party, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company, and will constitute a legal, valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting creditors' rights generally and to
general principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law), and
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws or principles of public policy.
(h) The Company is not, and on the date on which the first bona fide
offer of the Offered Certificates is made will not be, an "ineligible
issuer," as defined in Rule 405 under the Act.
(i) On the Closing Date, the Basic Documents will conform to the
description thereof contained in the Registration Statement, the Final
Prospectus and the Time of Sale Information; 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 Agreement.
(j) As of the Closing Date, the representations and warranties of
the Company set forth in the Pooling Agreement will be true and correct.
(k) Neither the execution and delivery by the Company of this
Agreement or any other of the Basic Documents nor the consummation by the
Company of the transactions contemplated herein or therein, nor the
issuance of the Offered Certificates or the public offering thereof as
contemplated in the Final Prospectus or the Time of Sale Information will
conflict in any material respect with or result in a material breach of,
or constitute a material default (with notice or passage of time or both)
under, or result in the imposition of any lien, pledge, charge, of the
property or assets of the Company (except as required or permitted
pursuant thereto or hereto), pursuant to any material mortgage, indenture,
loan agreement, contract or other instrument to which the Company is party
or by which it is bound, nor will such action result in any violation of
any provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or
by-laws of the Company. The Company is not in violation of its certificate
of incorporation, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease, trust agreement, transfer and servicing agreement or other
instrument to which a party or by which it may be bound, or to which any
material portion of its property or assets is subject.
(l) No legal or governmental proceedings are pending to which the
Company is a party or of which any property of the Company is subject,
which if determined adversely to the Company would, individually or in the
aggregate, have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(m) Since the date of which information is given in the Registration
Statement, there has not been any material adverse change in the business
or net worth of the Company.
(n) Any taxes, fees and other governmental charges in connection
with the execution and delivery of the Basic Documents and the execution,
delivery and sale of the 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 of its obligations under the Basic
Documents 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 Final Prospectus and
the Time of Sale Information, 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 it
have received as of the Closing Date, any notice of proceedings relating
to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially and adversely
affect the conduct of its business, operations or financial condition.
(q) On the Closing Date, (i) the Company will have good and
marketable title to the related Mortgage Loans being transferred by it to
the Trust pursuant thereto, free and clear of any lien, (ii) the Company
will not have assigned to any person any of its right, title or interest
in such Mortgage Loans or in the Pooling Agreement, and (iii) the Company
will have the power and authority to sell such Mortgage Loans to the
Trust, and upon execution and delivery of the Pooling Agreement by the
Trustee, the Company and the Servicer, 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 Time of Sale Information.
(s) The Trust Fund (as defined in the Pooling Agreement) is not
required to be registered under 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 Agreement under the Trust Indenture Act
of 1939, as amended.
(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 Time of Sale Information, (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 (as defined in Section
11(e)(i)) included in the Time of Sale Information 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 Certificate Principal Balance of the Offered
Certificates at a purchase price set forth in Schedule I hereto.
The Company will deliver the Offered Certificates to the
Underwriter, against payment of the 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 [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York, New York] [Hunton &
▇▇▇▇▇▇▇▇ LLP, Charlotte, North Carolina] at 10:00 A.M., Eastern time, on
_________, 20___, 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 office
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:
(i) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), it has not made and will not make an offer of Certificates to the
public in that Relevant Member State prior to the publication of a
prospectus in relation to the Offered Certificates which has been approved
by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from and
including the relevant implementation date, make an offer of Certificates
to the public in that Relevant Member State at any time:
(A) 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;
(B) 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
(C) 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.
(ii) 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 Certificates in
circumstances in which Section 21(1) of the FSMA does not apply to the
issuer.
(iii) 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 its
review prior to filing and will not file any such proposed amendment or
supplement to which the Underwriter reasonably objects. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424. The Company will advise
the Underwriter promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any amendment to
the Registration Statement relating to the Offered Certificates shall have
become effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to amend or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will use its best efforts to cause
any required post-effective amendment to the Registration Statement
containing such amendment to be made effective as soon as possible.
(c) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, executed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by the Underwriter or dealers may be required by the Act, as
many copies of the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriter may reasonably request. The Company
will pay the expenses of printing all documents relating to the initial
offering.
(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
obligation of the Underwriter to purchase the Offered Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Underwriter shall have received from [________________] 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.
(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 or the Servicer which, in the reasonable
judgment of the Underwriter, materially impairs the investment quality of
the Offered Certificates; (ii) any downgrading in the rating of the
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 rating of the 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) 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.
(e) The Underwriter shall have received a favorable opinion of
[▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP] [▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], special tax
counsel for the Company, addressed to the Underwriter and dated the
Closing Date and reasonably satisfactory in form and substance to the
Underwriter and counsel to the Underwriter.
(f) The Underwriter shall have received a favorable opinion of
[▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP] [▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], special
counsel for the Company, addressed to the Underwriter and dated the
Closing Date and reasonably satisfactory in form and substance to the
Underwriter, with respect to the validity of the Certificates, ERISA
matters and such other related matters as the Underwriter 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 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 an opinion of counsel to the
Trustee, dated the Closing Date, in form and substance satisfactory to the
Underwriter and its counsel.
(i) The Underwriter 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) At the Closing Date, the Certificates and the Pooling Agreement
will conform in all material respects to the descriptions thereof
contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Final Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of counsel to the Underwriter, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(l) The Underwriter shall have received from [▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇ LLP] [▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], special counsel for the Underwriter,
a letter dated the Closing Date with respect to the Final Prospectus, in
form and substance satisfactory to the Underwriter.
(m) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Pooling
Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the
Registration Statement and the Final Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all respects to counsel for
the Underwriter, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(n) The Underwriter shall have received a certificate (upon which
[Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP] [▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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
[Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP] [▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 "Originator") in which such officer shall state that, to the best of
such officer's knowledge after reasonable investigation: (i) except as
disclosed, the Originator is not an affiliate of any other entity listed
as a transaction party in the Prospectus Supplement; (ii) the information
in the Prospectus Supplement related to the Originator (the "Originator
Disclosure") includes the Originator's correct name, form of organization
and length of time originating mortgage loans; (iii) the description of
the Originator's origination program includes (a) experience in
originating mortgage loans, (b) size and composition of the Originator's
origination portfolio, and (c) the Originator's credit-granting or
underwriting criteria for the mortgage loans; (iv) except as set forth in
the Originator Disclosure, no additional information regarding the
Originator's origination program could have a material adverse affect in
the performance of the pool assets or the Offered Certificates; and (v)
the Originator Disclosure is true and correct in all material respects and
nothing has come to his or her attention that that would lead such officer
to believe that the Originator Disclosure contains any untrue statement of
material fact or omits to state a material fact necessary to make the
statements therein not misleading.
(p) The Underwriter shall have received a certificate (upon which
[Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP] [▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 Servicer in which
such officer shall state that, to the best of such officer's knowledge
after reasonable investigation: (i) except as disclosed in the Prospectus
Supplement, the Servicer is not an affiliate of any other entity listed as
a transaction party in the Prospectus Supplement; (ii) the information in
the Prospectus Supplement related to the Servicer (the "Servicer
Disclosure") includes (a) the Servicer's correct name and form of
organization, (b) the correct length of time that the Servicer has been
servicing mortgage loans; and (c) a discussion of the Servicer's
experience in servicing mortgage loans; (iii) except as set forth in the
Servicer Disclosure, (a) there are no other servicers responsible for
calculating or making distributions to the holders of the Offered
Certificates, performing work-outs or foreclosures, or any other material
aspect of servicing the mortgage loans, (b) there have been no material
changes to the Servicer's servicing policies and procedures during the
last three years, (c) no additional information regarding the Servicer's
financial condition could have a material affect on performance of the
Mortgage Loans or the Offered Certificates, (d) no commingling of funds on
deposit in collection accounts will be permitted by the Servicer, (e) no
additional information with respect to any special or unique factors
involved in servicing the mortgage loans could have a material affect on
performance of the Offered Certificates, and (f) no additional information
with respect to the Servicer's process for handling delinquencies, losses,
bankruptcies and recoveries could have a material affect on performance of
the Offered Certificates; (iv) for each other 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 servicer; and (v) the Servicer Disclosure is
true and correct in all material respects and nothing has come to his or
her attention that that would lead such officer to believe that the
Servicer Disclosure contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements therein
not misleading.
The Company will provide or cause to be provided to the Underwriter
such conformed copies of such opinions, certificates, letters and documents as
the Underwriter may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
SECTION 7. Reimbursement of the Underwriter's Expenses. If the sale
of the Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriter set forth in Section 6 hereof is
not satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriter, the Company will reimburse
the Underwriter upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
it 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 to which it 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
(i) 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 Time of Sale
Information, 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, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing
Prospectus (as defined in Section 11(e)(i) or any Issuer Information (as
defined in Section 11(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 11(e) or
Section 11(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 Corrective Information subsequently supplied by the Company
to the Underwriter within a reasonable period of time prior to the Time of
Sale, and (iii) any breach of the representation and warranty in Section
2(h), 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; provided, however, that 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 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. 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 (i) any untrue statements or alleged untrue statements of a
material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in the
information furnished in writing to the Company by the Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Prospectus, the Time of Sale Information or
any revision or amendment thereof or supplement thereto and (ii) any
untrue statements or alleged untrue statements of a material fact in any
Free Writing Prospectus prepared by or on behalf of the Underwriter, or
omissions or alleged omissions to state a material fact necessary to make
the statements therein (when read in conjunction with the Time of Sale
Information), in the light of the circumstances under which they were
made, not misleading; provided, that the Underwriter shall not be
obligated to so indemnify and hold harmless to the extent such loss,
liability, claim, damage or expense is caused by a misstatement or
omission resulting from an error or omission in any Issuer Information
which was not corrected by Corrective Information subsequently supplied by
the Company to the Underwriter within a reasonable period of time prior to
the Time of Sale.
(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 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 each of the Company and 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
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. Representations and Indemnities to Survive; No Fiduciary
Duty.
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 9 shall survive the termination or cancellation of this
Agreement.
SECTION 10. 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 11. 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," as defined in Rule 405 under the
Act (a "Free Writing Prospectus"). Without limitation thereby, without the
prior written consent of the Company (which consent may be withheld for
any reason), the Underwriter shall not convey or deliver in connection
with the initial offering of the Certificates any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the Act.
(b) (i) The Underwriter shall deliver to the Company, no later than
two business days prior to the date of first use thereof, (A) any Free
Writing Prospectus prepared by or on behalf of the Underwriter that
contains any "issuer information," as defined in Rule 433(h) under the Act
and footnote 271 of the Commission's Securities Offering Reform Release
No. 33-8591 ("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 (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 11(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 11(b), when read in conjunction with the Time of Sale
Information, did not, as of the Time of Sale, 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 Corrective Information subsequently supplied by the
Company to the Underwriter within a reasonable period of time prior to the
Time of Sale.
(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
(an "Issuer Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered
by the Underwriter to the Company pursuant to Section 11(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 11(e) by the Company shall be filed with the Commission not later
than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of
the Certificates may be filed by the Company within two days of the
later of the date such final terms have been established for all
classes of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material may be filed by the Company with the Commission not later
than the later of the due date for filing the final Prospectus
relating to the Certificates pursuant to Rule 424(b) under the Act
or two business days after the first use of such Free Writing
Prospectus;
(iii) any Free Writing Prospectus required to be filed
pursuant to Section 11(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 11(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 11(e) and 11(g),
neither the Company nor the Underwriter shall be required to file any Free
Writing Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the
Commission.
(j) The Company and the Underwriter each agree that any Free Writing
Prospectuses prepared by the Underwriter shall contain the following
legend:
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 issuer and this offering. You may get these documents for free
by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively,
the depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it
by calling toll-free ▇-▇▇▇-▇▇▇-▇▇▇▇ or you e-mail a request to
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The securities may
not be suitable for all investors. Banc of America Securities LLC
and its affiliates may acquire, hold or sell positions in these
securities, or in the 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 contract of sale will terminate, by its
terms, without any further obligation or liability between us, if
the securities themselves, or the particular class to which the
contract relates, are not issued. Because the asset-backed
securities are subject to modification or revision, any such
contract also is conditioned upon the understanding that no material
change will occur with respect to the relevant class of securities
prior to the closing date. If a material change does occur with
respect to such class, our contract will terminate, by its terms,
without any further obligation or liability between us (the
"Automatic Termination"). If an Automatic Termination occurs, we
will provide you with revised offering materials reflecting the
material change and give you an opportunity to purchase such class.
To indicate your interest in purchasing the class, you must
communicate to us your desire to do so within such timeframe as may
be designated in connection with your receipt of the revised
offering materials.
The information contained in these materials may be based on
assumptions regarding market conditions and other matters as
reflected herein. Banc of America Securities LLC (the "Underwriter")
makes no representation regarding the reasonableness of such
assumptions or the likelihood that any such assumptions will
coincide with actual market conditions or events, 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) In the event that the Company becomes aware that, as of the Time
of Sale, any Issuer Free Writing Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in order to
make the statements contained therein (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which they
were made, not misleading (a "Defective Issuer Free Writing Prospectus"),
the Company shall notify the Underwriter within one business day after
discovery and the Company shall, if requested by the Underwriter, prepare
and deliver to the Underwriter a Free Writing Prospectus that corrects the
material misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus").
(l) In the event that the Underwriter become aware that, as of the
Time of Sale, any Free Writing Prospectus prepared by or on behalf of the
Underwriter delivered to an investor in any Certificates contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading, when considered
in conjunction with the Time of Sale Information (together with a
Defective Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), the Underwriter shall notify the Company thereof within one
business day after discovery.
(m) The Underwriter shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was a Free
Writing Prospectus prepared by or on behalf of the Underwriter,
prepare a Free Writing Prospectus which corrects the material
misstatement in or omission from the Defective Free Writing
Prospectus (together with a Corrected Issuer Free Writing
Prospectus, a "Corrected Free Writing Prospectus");
(ii) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior
to entering into a contract of sale with such investor;
(iii) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated, and of
the investor's rights as a result of termination of such agreement;
(iv) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(v) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in
Section IV.A.2.c of the Commission's Securities Offering Reform
Release No. 33-8591.
(n) 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 11 for a period of three years following the
initial bona fide offering of the Certificates.
(o) The Underwriter covenants with the Company 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 12. 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 the
Underwriter shall be directed to Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇-027-21-04, Charlotte, North Carolina 28255, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇; and notices to the Company shall be directed to it at Asset Backed
Funding Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Associate General Counsel, with a copy to the Treasurer.
SECTION 13. 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 14. 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 15. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Offered
Certificates pursuant to this Agreement, including the determination of the
public offering price of the Offered Certificates and any related discounts and
commissions, is an arm's-length commercial transaction between the Company, on
the one hand, and the Underwriter on the other hand, and the Company is capable
of evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction the Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company or its affiliates,
stockholders, creditors or employees or any other party; (iii) the Underwriter
has not assumed, nor will it assume, an advisory or fiduciary responsibility in
favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether the Underwriter has
advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement; (iv) the Underwriter and its affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Company and that the Underwriter has no obligation to disclose any of such
interests by virtue of any fiduciary or advisory relationship; and (v) the
Underwriter has not provided any legal, accounting, regulatory 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 16. 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 17. Non-Petition.
The Underwriter hereby agrees not to cause or participate in the
filing of a petition in bankruptcy against the Company for the non-payment to
the Underwriter of any amounts provided by this Agreement or otherwise until one
year and one day after the payment in full of all amounts due on the
Certificates in accordance with the terms of the Pooling Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign this Agreement and return it to us.
Very truly yours,
ASSET BACKED FUNDING CORPORATION
By:________________________________
Name: __________________
Title: __________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
BANC OF AMERICA SECURITIES LLC
By: ________________________________
Name: __________________
Title: __________________
SCHEDULE I
Offered Certificates: Class A-1, Class A-2, Class A-3, Class A-4, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Registration Statement File Number: 333-130524
Original Class Certificate Principal Balance of the Offered Certificates:
Original Class Certificate
Class Principal Balance
---------------------- ----------------------------
Class A-1
Class A-2
Class A-3
Class A-4
Class M-1
Class M-2
Class M-3
Class M-4
Class M-5
Class M-6
Purchase Price: $______________________
Classes of Book-Entry Class A-1, Class A-2, Class A-3, Class A-4,
Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5 and Class M-6 Certificates:
Description of Mortgage Loans: A pool of fixed and adjustable rate, first
and second-lien sub-prime mortgage loans
having an aggregate principal balance as of
the Cut-off Date of approximately
$____________.
Denominations: The Offered 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. in the aggregate amount equal to
the Original Class Certificate Principal
Balance of such Class. Interests in such
Classes of Offered Certificates may be
purchased by investors in minimum
denominations of $25,000 and integral
multiples of $1.
Cut-off Date: ________ 1, 20___.
Certificate Ratings:
Class [_____] [_____]
Class A-1
Class A-2
Class A-3
Class A-4
Class M-1
Class M-2
Class M-3
Class M-4
Class M-5
Class M-6
SCHEDULE II
TIME OF SALE INFORMATION
1. Free Writing Prospectus, in the form of a RMBS New Issue Term
Sheet, filed and accepted by the Commission on [___________], with a filing date
of [___________] and accession number [________________].
2. Free Writing Prospectus and the related Base Prospectus, both
filed and accepted by the Commission on [____________], with a filing date of
[____________] and accession number [_____________].
3. Free Writing Prospectus, in the form of spreadsheets containing
information on the Mortgage Loans in the form of collateral tape information,
filed and accepted by the Commission on [___________], with a filing date of
[__________] and accession number [_________________].
