<PAGE>
Exhibit 1.1
EXECUTION COPY
BANC OF AMERICA FUNDING CORPORATION
$833,104,601
(Approximate)
Mortgage Pass-Through Certificates,
Series 2007-1
January 29, 2007
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
("BAS" or the "Underwriter") $833,104,601 aggregate Class
Certificate Balance of
its Mortgage
Pass-Through
Certificates
identified
in Schedule I hereto
(the
"Offered Certificates") having the Initial Class Certificate
Balances or Initial
Notional Amounts
(or, with respect to each class of Exchangeable REMIC or
Exchangeable
Certificates, the
Maximum Initial Class
Certificate Balances
or
Maximum Initial Notional Amounts) set forth in Schedule I
(subject to an upward
or downward variance, not to exceed 5%, of the precise Initial
Class Certificate
Balances or
Initial Notional Amounts (or, with respect to each class of
Exchangeable REMIC or
Exchangeable
Certificates,
the Maximum
Initial Class
Certificate Balances
or Maximum Initial Notional Amounts) within such range to
be determined by the Company in its sole discretion). The Offered Certificates,
together with the Class 1-B-4, Class 1-B-5, Class 1-B-6, Class T-B-1, Class
CE
and Class P
Certificates (the
"Non-Offered
Certificates")
are collectively
referred to herein as
the "Certificates"
and evidence the entire ownership
interest in the
assets of a trust estate (the "Trust Estate") consisting
primarily of a pool of fixed interest rate mortgage loans having
original terms
to maturity of
approximately 180 to
approximately
360 months as
described in
Schedule I (the
"Mortgage Loans") to
be acquired by the Company pursuant to a
mortgage loan purchase agreement (the "Mortgage Loan Purchase
Agreement"), dated
January 30, 2007 by and between the Company, as purchaser,
and Bank of
America,
National Association,
as seller. As of the close of business on the date
specified in Schedule I as the cut-off date (the "Cut-off
Date"), the Mortgage
Loans will have the
aggregate principal
balance set forth in
Schedule I. This
Underwriting Agreement
shall hereinafter be referred to as the "Agreement."
Elections will be made
to treat certain of
the assets of the
Trust Estate as
multiple separate real
estate mortgage
investment conduits
(each, a "REMIC").
The Certificates are to be issued pursuant to a pooling and
servicing agreement,
dated January 30,
2007 (the "Pooling and Servicing Agreement"), among the
Company, as
depositor,
U.S. Bank National Association, as trustee (the
"Trustee"), and Wells
Fargo Bank, N.A., as master servicer (the "Master
1
<PAGE>
Servicer") and as securities administrator (the "Securities
Administrator"). The
Offered Certificates
will be issued in the denominations specified in Schedule
I. The Pooling and
Servicing Agreement,
this Agreement, the Mortgage Loan
Purchase Agreement and the purchase agreement, to be dated January 30, 2007,
by
and between BAS, as purchaser, and the Company (the "Purchase
Agreement")
are
collectively referred to herein as the "Basic Documents."
Capitalized terms used
herein that are not otherwise defined herein have
the meanings assigned thereto in the Pooling and Servicing
Agreement.
SECTION 2.
Representations and
Warranties
of the Company. The Company
represents and warrants to the Underwriter as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of
1933, as amended (the "Act") and has filed with the
Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3
(the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act
of
the
Offered Certificates.
Such registration
statement, as amended
to the
date
of this Agreement,
meets the requirements set forth in Rule 415(a)(l)
under the Act and
complies in all other material respects with Rule
415(a)(1). The Company
proposes to file with
the Commission
pursuant to
Rule
424 under the Act a supplement to the form of prospectus included in
such
registration statement
relating to the
Offered Certificates
and the
plan
of distribution thereof and a revised form of prospectus (the
"Revised
Basic
Prospectus") and
has previously advised you of all further
information (financial
and other)
with respect to the Company to be
set
forth therein. Such registration statement, including the exhibits
thereto,
as
amended to the date of this Agreement, is hereinafter called the
"Registration
Statement"; such
prospectus in the form in which it appears
in
the Registration
Statement, as revised by the Revised Basic Prospectus,
is
hereinafter called the
"Basic Prospectus";
and such supplement to
the
Basic Prospectus,
in the form in which it shall be filed with the
Commission pursuant to
Rule 424, is
hereinafter
called the
"Prospectus
Supplement" and,
collectively
with the Basic Prospectus, the "Final
Prospectus." Any reference herein to the Registration Statement,
the Basic
Prospectus or the Final Prospectus shall be deemed to
refer to and include
the
documents incorporated by reference therein pursuant to Item 12 of
Form
S-3
which were filed under the Securities Exchange Act of 1934, as
amended
(the
"Exchange Act"), on or before the date of this Agreement, or the
issue
date
of the Basic Prospectus or the Final Prospectus, as the case may be;
and
any reference herein to the terms "amend," "amendment" or "supplement"
with
respect to the
Registration
Statement, the Basic
Prospectus or the
Final Prospectus shall
be deemed to refer to and include the filing of any
document under the
Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus or the Final Prospectus, as the
case may
be,
and deemed to be incorporated therein by reference.
(b) At or prior to the filing dates set forth in Schedule II hereto
(the
"Relevant Dates"), the Company prepared the information
(collectively,
the
"Disclosure Package")
listed in Schedule II hereto. If, subsequent to
the
date of this
Agreement, the Company
or the Underwriter has determined
that
such information
included an untrue
statement of material fact or
2
<PAGE>
omitted to state a material fact necessary in order to make the
statements
therein, in the light
of the circumstances under which they were made, not
misleading and have
terminated
their old purchase
contracts and
entered
into
new purchase contracts
with purchasers of the
Offered
Certificates,
then
"Disclosure
Package" will refer to the information available to
purchasers at the time of entry into the first such new purchase
contract,
including any
information that
corrects such material
misstatements
or
omissions ("Corrective Information").
(c) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined),
any amendment to the Registration Statement becomes
effective (including
the filing of any document incorporated by reference
in
the Registration Statement), when any supplement to the Final
Prospectus
is
filed with the Commission and at the Closing Date, (i) the
Registration
Statement, as amended
as of any such time,
and the Final
Prospectus, as
amended or
supplemented as of any
such time, will comply
in all material
respects with
the Act and
the respective rules thereunder, (ii) the
Registration
Statement, as amended
as of any such time,
will not contain
any
untrue statement of a
material fact or omit to state any material fact
required to be stated
therein or necessary in order to make the statements
therein not
misleading,
and (iii) the Final
Prospectus,
as amended or
supplemented as of any such time, will not contain any untrue
statement of
a
material fact or omit
to state any material
fact required to be
stated
therein or necessary in order to make the statements therein, in light of
the
circumstances
under which they were
made, not misleading;
provided,
however, that the
Company makes no representations or warranties as to the
information contained in or omitted from the Registration
Statement or the
Final Prospectus or any amendment thereof or supplement thereto in
reliance
upon
and in conformity with information furnished in writing to the
Company
by
or on behalf of the Underwriter specifically for use in connection
with
the
preparation of the Registration Statement or the Final
Prospectus.
(d) Each item in the Disclosure Package, at the related Relevant
Date
did
not, and at the Closing Date will not, contain any untrue statement
of
a
material fact or omit to state a material fact necessary in order
to make
the
statements therein, in
the light of the circumstances under which they
were
made, not misleading; provided that the Company makes no
representation and warranty with respect to the information
contained in or
omitted from the Disclosure Package or any amendment thereof
or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriter
specifically for
use
in connection with the preparation of the Disclosure Package.
(e) The Company has been duly incorporated and is validly
existing as
a
corporation under the laws of the State of Delaware and has
corporate and
other power and authority to own its properties and conduct its business,
as
now conducted by it, and to enter into and perform its obligations
under
this
Agreement and the other Basic Documents to which it is a party.
(f) The Company is not aware of (i) any request by the Commission for
any
further amendment of the Registration Statement or the Basic
Prospectus
or
for any additional information or (ii) the issuance by the
Commission of
3
<PAGE>
any
stop order suspending the effectiveness of the Registration
Statement
or
the initiation of any proceedings for that purpose by the
Commission.
(g) This Agreement has been duly authorized, executed and delivered
by
the
Company, and each of
the other Basic Documents to which the Company is
a
party, when
delivered by the
Company, will have
been duly
authorized,
executed and delivered by the Company, and will constitute a legal,
valid
and
binding agreement of
the Company,
enforceable against
the Company in
accordance with its terms, subject, as to the enforcement of
remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium,
receivership
and
similar laws
affecting creditors' rights generally and to general
principles of
equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law),
and except as
rights to indemnity and contribution hereunder may be limited by
federal or
state securities laws or principles of public policy.
(h) The Company is
not, and on the date
on which the first bona fide
offer of the Offered
Certificates
is made will not be, an "ineligible
issuer," as defined in Rule 405 under the Act.
(i) On the Closing
Date, the Basic Documents will conform to the
description thereof
contained in the
Registration
Statement,
the Final
Prospectus and the Disclosure Package; the Offered Certificates will have
been
duly and validly
authorized and, when such Offered Certificates are
duly
and validly executed,
issued and
delivered in
accordance
with the
Pooling and Servicing
Agreement, and sold to
the Underwriter as
provided
herein, will be validly issued and outstanding and entitled to the
benefits
of
the Pooling and Servicing Agreement.
(j) As of the Closing Date, the representations and warranties of
the
Company set forth in the Pooling and Servicing Agreement will be true and
correct.
(k) Neither
the execution and delivery by the Company of this
Agreement or any other of the Basic Documents nor the consummation by the
Company of the
transactions
contemplated
herein or therein, nor the
issuance of the
Offered Certificates
or the public
offering thereof as
contemplated in the
Final Prospectus or the Disclosure Package will
conflict in any material respect with or result in a material
breach of, or
constitute a
material default (with notice or passage of time or
both)
under, or result in
the imposition of any
lien, pledge,
charge, of the
property or assets of the Company (except as required or permitted
pursuant
thereto or hereto),
pursuant to any
material mortgage,
indenture,
loan
agreement, contract or other instrument to which the Company is
party or by
which it is bound, nor
will such action
result in any
violation of any
provisions of
any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or
by-laws
of
the Company.
The Company is not in
violation of its certificate of
incorporation, in
default in any material respect in the performance or
observance of any
material obligation,
agreement,
covenant or
condition
contained in any
contract, indenture,
mortgage, loan agreement, note,
lease, trust
agreement,
transfer
and servicing agreement or other
4
<PAGE>
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 or (ii) the offer, sale or delivery of the Offered
Certificates except
such as shall have been obtained or made, as the case
may
be, or will be
obtained or made, as the case may be, prior to the
Closing Date, or will not materially adversely affect the ability of the
Company to perform its obligations under any Basic Document.
(p) The Company
possesses, and will
possess, all material
licenses,
certificates,
authorities or
permits issued by the appropriate state,
federal or foreign
regulatory agencies or
bodies necessary to conduct the
business now
conducted by it and as described in the Preliminary
Prospectus, if any,
Final Prospectus and the Disclosure Package, except to
the
extent that the failure to have such licenses, certificates,
authorities or
permits does not have a material adverse effect on the
Offered Certificates
or the financial
condition of the
Company, and the
Company has not
received, nor will
have received as of each Closing Date,
any
notice of proceedings relating to the revocation or modification of
any
such
license, certificate, authority or permit which, singly or in the
aggregate, if the
subject of an unfavorable decision, ruling or finding,
would materially
and adversely affect the conduct of its business,
operations or financial condition.
(q) On the Closing Date, (i) the Company will have good and
marketable
title to the related
Mortgage Loans being
transferred by it to
the Trust
pursuant thereto,
free and clear of any
lien, (ii) the Company
will not
have
assigned to any person any of its right,
title or interest in such
Mortgage Loans or in
the Pooling and
Servicing Agreement,
and (iii) the
Company will have the power and authority to sell such
Mortgage Loans to
the
Trust, and upon
execution and delivery of the Pooling and
Servicing
Agreement by the
Trustee, the Company, the Master Servicer and the
Securities
Administrator, the
Trust will have good and marketable title
thereto, in each case free of liens.
5
<PAGE>
(r) The properties and
businesses of the
Company conform,
and will
conform, in all material respects, to the descriptions thereof
contained in
the
Final Prospectus and the Disclosure Package.
(s) The Company is not, and, after giving effect to the
transactions
contemplated by the
Pooling and Servicing
Agreement and the
offering and
sale
of the Offered
Certificates,
neither the Company
nor the Trust Fund
will
be, an "investment
company," as defined in the Investment Company Act
of
1940, as amended.
(t) It is not
necessary in
connection
with the offer, sale and
delivery of the Offered Certificates in the manner contemplated by this
Agreement to qualify the Pooling and Servicing Agreement under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
(u) Other than the Final Prospectus, the Company (including its
agents
and
representatives
other than the Underwriter) has not made, used,
prepared, authorized,
approved or referred to and will not make, use,
prepare, authorize,
approve or refer to
any "written
communication" (as
defined in Rule 405
under the Act) that
constitutes
an offer to sell
or
solicitation of an
offer to buy the
Offered Certificates
other than (i)
information included
in the Disclosure
Package, (ii) any document not
constituting a
prospectus pursuant to
Section 2(a)(10)(a)
of the Act or
Rule
134 under the Act or (iii) other written communication approved in
writing in
advance by the Underwriter.
(v) Any Issuer
Free Writing Prospectus complied in all material
respects with the Act
and has been, or will
be filed in accordance
with
Rule
433 under the Act (to the extent required thereby).
SECTION 3. Purchase,
Sale and Delivery of Offered Certificates. On the
basis of the
representations,
warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company,
the aggregate Class Certificate Balance of the Offered
Certificates, at the purchase price set forth in Schedule I
hereto.
The
Company will deliver the Offered Certificates to the Underwriter,
against payment of the
applicable
purchase price therefor in same day funds
wired to such bank as may be designated by the Company,
or by such other
manner
of payment as may be agreed upon by the Company and the Underwriter, at the
offices of Hunton & Williams LLP, Charlotte, North Carolina, at 10:00 A.M.,
Eastern time, on January 30, 2007, or at such other place or time
not later than
seven full
business days thereafter as the Underwriter and the Company
determine, such time being referred to herein as the "Closing
Date."
The
Offered Certificates
so to be delivered will be in such denominations
and registered in such names as the Underwriter requests two full business
days
prior to the Closing
Date and will be made
available at the offices of Banc of
America Securities
LLC, Charlotte,
North Carolina or,
upon the
Underwriter's
request, through the facilities of The Depository Trust
Company.
SECTION 4. Offering by the Underwriter.
6
<PAGE>
(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.
It
has only communicated
or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in
investment activity
(within the meaning of Section 21 of the
United Kingdom
Financial Services
and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of the Offered Certificates in circumstances
in which Section 21(1) of the FSMA does not apply to the issuing
entity.
It
has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Offered
Certificates in,
from or otherwise involving the United Kingdom.
7
<PAGE>
SECTION 5. Covenants
of the Company.
The Company
hereby covenants and
agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Offered
Certificates, the
Company will not file any amendment of the Registration
Statement or
supplement
(including
the Final Prospectus) to the Basic
Prospectus unless the
Company has furnished
the Underwriter a copy for
their review prior to filing and will not file any such proposed
amendment
or
supplement to which the Underwriter reasonably objects. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to
be filed
with
the Commission
pursuant to Rule 424. The Company will advise the
Underwriter promptly
(i) when the Final
Prospectus shall have
been filed
with
the Commission
pursuant to Rule 424,
(ii) when any
amendment to the
Registration Statement
relating to the Offered Certificates shall have
become effective,
(iii) of any request by the Commission for any amendment
of
the Registration
Statement or amendment
of or supplement to
the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of
any stop order suspending the effectiveness of the
Registration Statement
or the institution or threatening of any proceeding
for
that purpose and (v) of the receipt by the Company of any
notification
with
respect to the suspension of the qualification of the Offered
Certificates for sale
in any jurisdiction or the initiation or threatening
of
any proceeding for
such purpose. The
Company will use its best efforts
to
prevent the issuance of any such stop order and, if issued, to
obtain as
soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event
occurs as
a
result of which the Final Prospectus as then amended or supplemented
would include any untrue statement of a material fact or
omit to state any
material fact
necessary to make the
statements therein,
in light of the
circumstances under which they were made, not misleading, or if it
shall be
necessary to amend or
supplement the Final
Prospectus to comply
with the
Act
or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare
and file with the
Commission, subject to
the first
sentence of paragraph
(a) of this Section 5,
an amendment or
supplement
which will correct
such statement or
omission or an amendment which will
effect such compliance
and will use its best efforts to cause any required
post-effective
amendment to the
Registration Statement
containing
such
amendment to be made effective as soon as possible.
(c) The Company will
furnish to the
Underwriter and
counsel for the
Underwriter, without
charge, executed copies of the Registration Statement
(including exhibits
thereto) and each amendment thereto which shall become
effective on or prior
to the Closing
Date and, so long as delivery of a
prospectus by the
Underwriter
or dealers
may be required by the
Act, as
many
copies of the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriter may reasonably request.
The Company
will
pay the expenses of
printing all
documents relating to the initial
offering, provided that any additional expenses incurred in
connection with
the
requirement of delivery of a market-making prospectus, if applicable,
will
be borne by the Underwriter.
8
<PAGE>
(d) The Company will furnish such information as may be required and
otherwise cooperate in
qualifying the Offered
Certificates for sale under
the
laws of such jurisdictions as the Underwriter may reasonably
designate
and
to maintain such
qualifications in
effect so long as required for the
distribution of the
Offered Certificates; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction
where it is not now so qualified or to take any action which would
subject
it
to general or unlimited service of process in any jurisdiction
where it
is
not now so subject.
SECTION 6.
Conditions
to the Obligations of the Underwriter. The
obligations of the
Underwriter to
purchase the Offered
Certificates shall
be
subject to the accuracy of the representations and warranties on
the part of the
Company contained
herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date
(including the filing
of any document
incorporated by
reference
therein) and as of the Closing Date, to the accuracy of the
statements of the
Company made in any certificates delivered pursuant to the
provisions hereof, to
the performance by the Company of its obligations hereunder and to
the following
additional conditions:
(a) The Underwriter shall have received from Deloitte & Touche
LLP (i)
a
letter, dated the date hereof, confirming that they are independent
public accountants
within the meaning of the Act and the rules and
regulations of the Commission promulgated thereunder and
otherwise in form
and
substance reasonably satisfactory to the Underwriter and counsel to
the
Underwriter and (ii)
if requested by the
Underwriter, a letter
dated the
Closing Date, updating
the letter referred to in clause (i) above, in form
and
substance reasonably
satisfactory
to the Underwriter and
counsel for
the
Underwriter.
(b) All actions
required to be taken
and all filings
required to be
made
by the Company under the Act prior to the sale of the Offered
Certificates shall
have been duly taken and made. At and prior to the
Closing Date,
no stop order suspending the effectiveness of the
Registration Statement
shall have been issued
and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company
or
the
Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there
shall not have
occurred (i) any
change, or any
development
involving a
prospective change, in or affecting particularly the business or
properties
of
the Company, any Servicer or the Master Servicer which, in the
reasonable judgment of
the Underwriter,
materially impairs the investment
quality of the Offered Certificates; (ii) any downgrading in the
ratings of
the
securities of any
Servicer or the Master
Servicer by any
"nationally
recognized statistical
rating organization" (as such term is
defined for
purposes of Rule 436(g) under the Act), or any public announcement
that any
such
organization
has under surveillance or review its ratings of any
securities of
any Servicer or the Master Servicer (other than an
announcement with
positive implications
of a possible
upgrading, and no
implication of
a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the
New York
Stock Exchange,
or any setting of minimum prices for trading on such
exchange; (iv) any
banking moratorium declared by federal, North Carolina
or
New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
9
<PAGE>
by
Congress or any other substantial national or international
calamity or
emergency if, in the reasonable judgment of the Underwriter, the
effects of
any
such outbreak, escalation, declaration, calamity or emergency
makes it
impractical or
inadvisable to proceed
with completion of the
sale of and
payment for the Offered Certificates.
(d) The Underwriter
shall have received a certificate dated the
Closing Date of an
executive officer of
the Company in which such officer
shall state that, to the best of such officer's knowledge after reasonable
inspection, (i) the representations and warranties of the Company
contained
in
the Basic Documents
are true and correct with the same force and effect
as
if made on the Closing Date and (ii) the Company has complied with all
agreements and
satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(e) The Underwriter
shall have
received an opinion of reasonably
acceptable counsel to the Master Servicer and the Securities
Administrator,
dated the Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter.
(f) The Underwriter
shall have received an opinion of Hunton &
Williams LLP, special counsel to the Company and Bank of America,
National
Association, dated the
Closing Date, in form and substance satisfactory to
the
Underwriter and counsel for the Underwriter.
(g) The Underwriter
shall have
received copies of any opinions of
counsel for the
Company that the Company is required to deliver to any
Rating Agency.
Any such opinions shall be dated the Closing Date and
addressed to the Underwriter or accompanied by reliance
letters addressed
to
the Underwriter.
(h) The Underwriter
shall have
received from Hunton
& Williams LLP,
special counsel to the
Underwriter, a letter
addressed to the Underwriter
dated the Closing Date with respect to the Final Prospectus,
substantially
to
the effect that no facts have come to such counsel's attention in the
course of its review
of the Final
Prospectus which
causes it to
believe
that
the Final Prospectus,
as of the date of the Prospectus Supplement or
the
Closing Date,
contained any untrue statement of a material
fact or
omitted to state a material fact required to be stated therein or
necessary
to
make the statements
therein, in the light
of the circumstances
under
which they were made, not misleading; it being understood that such
counsel
need
not express any view as to any information incorporated by reference
in
the Final Prospectus or as to the adequacy or accuracy of the
financial,
numerical, statistical
or quantitative
information included
in the Final
Prospectus.
(i) On or before the Closing Date, the Underwriter shall have
received
evidence satisfactory
to it that each class
of Offered
Certificates has
been
given the ratings set forth on Schedule I hereto.
10
<PAGE>
(j) At the
Closing Date, the Certificates and the Pooling and
Servicing
Agreement will
conform in all material respects to the
descriptions thereof contained in the Final Prospectus.
(k) The Underwriter
shall not have
discovered
and disclosed to
the
Company on or prior to the Closing Date that the Registration
Statement or
the
Final Prospectus or
any amendment or
supplement thereto
contains an
untrue statement of a
fact or omits to state a fact which, in the opinion
of
counsel to the
Underwriter, is
material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(l) All corporate
proceedings and other legal matters relating to the
authorization, form
and validity of this Agreement, the Pooling and
Servicing
Agreement, the
Mortgage Loan Purchase Agreement, the
Certificates, the
Registration Statement and the Final Prospectus, and all
other legal
matters relating to this Agreement a
