Exhibit 1.1
BANC OF AMERICA MORTGAGE SECURITIES, INC.
$
(Approximate)
Mortgage
Pass-Through Certificates,
Series 200___-_
______ ___, 20__
UNDERWRITING AGREEMENT
Banc of America Securities LLC
214 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
SECTION 1.
Introductory. Banc of America Mortgage Securities, Inc., a
Delaware corporation (the "Company"), proposes to sell to Banc of
America
Securities LLC (the "Underwriter"), $______________ principal
amount of its
Mortgage Pass-Through Certificates identified in Schedule I hereto
(the "Offered
Certificates") having the Initial Class Certificate Balances set
forth in
Schedule I (subject to an upward or downward variance, not to
exceed 5%, of the
precise Initial Class Certificate Balance within such range to be
determined by
the Company in its sole discretion). The Offered Certificates,
together with
three classes of subordinate certificates (the "Non-Offered
Certificates") are
collectively referred to herein as the "Certificates" and evidence
the entire
ownership interest in the assets of a trust estate (the "Trust
Estate")
consisting primarily of a pool of adjustable interest rate mortgage
loans having
original terms to maturity of not more than _____ months as
described in
Schedule I (the "Mortgage Loans") to be acquired by the Company
pursuant to a
mortgage loan purchase agreement (the "Mortgage Loan Purchase
Agreement"), to be
dated _______ ___, 200__, between the Company and Bank of America,
National
Association ("BANA"). As of the close of business on the date
specified in
Schedule I as the cut-off date (the "Cut-off Date"), the Mortgage
Loans will
have the aggregate principal balance set forth in Schedule I. This
Underwriting
Agreement shall hereinafter be referred to as the "Agreement."
Elections will be
made to treat the assets of the Trust Estate as two 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
______ ___,
200___ (the "Pooling Agreement"), among the Company, as depositor,
BANA, as
servicer (the "Servicer"), and _________________, 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 ______ ___,
200__, among Banc
of America Securities LLC, as Purchaser, the Company and BANA, 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.
<PAGE>
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"; such prospectus in the form in which
it appears
in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplement to the Basic Prospectus, in the
form in
which it
shall be filed with the Commission pursuant to Rule 424, is
hereinafter called the "Prospectus Supplement" and, collectively
with the
Basic
Prospectus, the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus or the Final
Prospectus shall
be deemed
to refer to and include the documents incorporated by reference
therein
pursuant to Item 12 of Form S-3 which were filed under the
Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the
date of this Agreement, or the issue date of the Basic
Prospectus
or the Final Prospectus, as the case may be; and any reference
herein to
the terms "amend," "amendment" or "supplement" with respect to
the
Registration Statement, the Basic Prospectus or the Final
Prospectus
shall be
deemed to refer to and include the filing of any document under
the
Exchange Act after the date of this Agreement, or the issue date
of
the Basic
Prospectus or the Final Prospectus, as the case may be, and
deemed to
be incorporated therein by reference.
(b) 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,
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<PAGE>
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.
(c) 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.
(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.
(e) 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.
(f) 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.
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 principal amount of 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, Wickersham & Taft LLP, New York, New York 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."
3
<PAGE>
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:
In relation to each Member State of the European Economic Area
which
has implemented the Prospectus Directive (each, a "Relevant Member
State"), it
has not made and will not make an offer of Certificates to the
public in that
Relevant Member State prior to the publication of a prospectus in
relation to
the Offered Certificates which has been approved by the competent
authority in
that Relevant Member State or, where appropriate, approved in
another Relevant
Member State and notified to the competent authority in that
Relevant Member
State, all in accordance with the Prospectus Directive, except that
it may, with
effect from and including the relevant implementation date, make an
offer of
Certificates to the public in that Relevant Member State at any
time:
(i) to legal entities which are authorized or regulated to
operate in
the financial markets or, if not so authorized or regulated,
whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of
at least 250 employees during the last financial year; (2) a
total
balance sheet of more than (euro)43,000,000 and (3) an annual
net
turnover
of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of
the
Prospectus
Directive.
For the purposes of this representation, the expression an "offer
of
Certificates to the public" in relation to any Offered Certificates
in any
Relevant Member State means the communication in any form and by
any means of
sufficient information on the terms of the offer and the
Certificates to be
offered so as to enable an investor to decide to purchase or
subscribe the
Certificates, as the same may be varied in that Member State by any
measure
implementing the Prospectus Directive in that Member State and the
expression
"Prospectus Directive" means the European Commission Directive
2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
4
<PAGE>
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.
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.
5
<PAGE>
(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 dealer 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
PricewaterhouseCoopers
LLP (i) a
letter, dated the date hereof, confirming that they are
independent public accountants within the meaning of the Act and
the rules
and
regulations of the Commission promulgated thereunder and otherwise
in
form and
substance reasonably satisfactory to the Underwriter and
counsel
to the
Underwriter and (ii) if requested by the Underwriter, a letter
dated the
Closing Date, updating the letter referred to in clause (i)
above, in
form and substance reasonably satisfactory to the Underwriter
and
counsel for the Underwriter.
(b) All actions required to be taken and all filings required to
be
made by
the Company under the Act prior to the sale of the Offered
Certificates shall have been duly taken and made. At and prior to
the
Closing
Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that
purpose
shall have been instituted, or to the knowledge of the Company
or
the
Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there
shall not have occurred (i) any change, or any development
involving
a
prospective change, in or affecting particularly the business
or
properties
of the Company 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
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<PAGE>
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) The Underwriter shall have received a certificate dated the
Closing
Date of an executive officer of the Company in which such
officer
shall
state that, to the best of such officer's knowledge after
reasonable
inspection, (i) the representations and warranties of the
Company
contained
in the Basic Documents are true and correct with the same force
and effect
as if made on the Closing Date and (ii) the Company has
complied
with all agreements and satisfied all conditions on its part to
be
performed or satisfied hereunder at or prior to the Closing
Date.
(e) The Underwriter shall have received an opinion of counsel
for
the
Company, which may be an opinion of in-house counsel to the
Company,
dated the
Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter.
(f) The Underwriter shall have received a certificate of an
executive
officer of BANA, dated as of the Closing Date, to the effect
that, to
the best of such officer's knowledge, (i) the representations
and
warranties
contained in the Mortgage Loan Purchase Agreement are true and
correct
with the same force and effect as though made on and as of the
Closing
Date and (ii) such officer has reviewed the Final Prospectus as
amended or
supplemented to the Closing Date and nothing has come to such
officer's
attention that would lead such officer to believe that the
Final
Prospectus
as amended or supplemented, insofar as it relates to BANA or
the
Mortgage Loans originated or acquired by BANA, contains any
untrue
statement
of a material fact or omits to state a material fact necessary
in order
to make the statements therein, in light of the circumstances
under
which they were made, not misleading.
(g) The
Underwriter shall have received an opinion of counsel for
BANA,
which may be an opinion of in-house counsel to BANA, dated the
Closing
Date, in form and substance satisfactory to the Underwriter and
counsel
for the Underwriter.
(h) The Underwriter shall have received an opinion of
Cadwalader,
Wickersham
& Taft LLP, special counsel to the Company, which opinion
may
rely on,
and assume the accuracy of, the opinions described in
paragraphs
(e) and
(g) above, dated
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<PAGE>
the
Closing Date, in form and substance satisfactory to the
Underwriter
and
counsel for the Underwriter.
(i) 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.
(j) The Underwriter shall have received from Cadwalader,
Wickersham
& Taft
LLP, special counsel for the Underwriter, a letter dated the
Closing
Date with respect to the Final Prospectus, substantially to the
effect
t
