BANC OF AMERICA FUNDING CORPORATION
$ -------------------------
(Approximate)
Mortgage Pass-Through Certificates,
Series 20____-____
____ __, 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 Funding Corporation, 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 or notional amount 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
[fixed]
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 __________ __, 20__, 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." An election will be made to treat the assets of the
Trust Estate as
a real estate mortgage investment conduit (a "REMIC"). The
Certificates are to
be issued pursuant to a pooling and servicing agreement, to be
dated __________
__, 20__ (the "Pooling Agreement"), among the Company, as
depositor,
______________, as master servicer (the "Master 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,
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"; 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,
2
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
[Orrick, Herrington & Sutcliffe LLP, Washington, District of
Columbia]
[Cadwalader, Wickersham & Taft LLP, New York, New York][Hunton
& Williams LLP,
Charlotte, North Carolina] at 10:00 A.M., Eastern time, on
__________ __, 20__
or at
3
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:
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
4
European Commission Directive 2003/71/EC and includes any relevant
implementing
measure in each Relevant Member State.
It has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in
investment activity (within the meaning of Section 21 of the United
Kingdom
Financial Services and Markets Act 2000 (the "FSMA")) received by
it in
connection with the issue or sale of the 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
5
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 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, the Servicer or the
6
Master 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 or the Master
Servicer
by any "nationally recognized statistical rating organization" (as
such
term is defined for purposes of Rule 436(g) under the Act), or any
public
announcement that any such organization has under surveillance or
review
its rating of the Servicer or the Master Servicer (other than an
announcement with positive implications of a possible upgrading,
and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the
New
York Stock Exchange, or any setting of minimum prices for trading
on such
exchange; (iv) any banking moratorium declared by federal, North
Carolina
or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration
of war
by Congress or any other substantial national or international
calamity or
emergency if, in the reasonable judgment of the Underwriter, the
effects
of any such outbreak, escalation, declaration, calamity or
emergency makes
it impractical or inadvisable to proceed with completion of the
sale of
and payment for the Offered Certificates.
(d) The Underwriter shall have received a certificate dated the
Closing Date of an executive officer of the Company in which such
officer
shall state that, to the best of such officer's knowledge after
reasonable
inspection, (i) the representations and warranties of the Company
contained in the Basic Documents are true and correct with the same
force
and effect as if made on the Closing Date and (ii) the Company has
complied with all agreements and satisfied all conditions on its
part to
be performed or satisfied hereunder at or prior to the Closing
Date.
(e) The Underwriter shall have received an opinion of counsel to
the
Trustee, dated the Closing Date, in form and substance satisfactory
to the
Underwriter and its counsel.
(f) [Reserved]
(g) [Reserved]
(h) The Underwriter shall have received an opinion of [Orrick,
Herrington & Sutcliffe LLP][Cadwalader, Wickersham & Taft
LLP][Hunton &
Williams LLP], special counsel to the Company and BANA, dated the
Closing
Date, in form and substance satisfactory to the Underwriter and its
counsel.
(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 Underwrite
