EXHIBIT 1.1
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE INC.,
Company,
BANC OF AMERICA SECURITIES LLC
[OTHER UNDERWRITERS],
Underwriter[s],
_________________________________
UNDERWRITING AGREEMENT
Dated as of [______________], 20[__]
_________________________________
$[______________]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
Series 20[__-__]
BANC OF AMERICA SECURITIES LLC
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Name and Address of each other Underwriter]
Dear Ladies and Gentlemen:
Banc of America Commercial Mortgage Inc., a Delaware corporation
(the "Company"), intends to issue its Commercial Mortgage Pass-Through
Certificates, Series 20[__]-[_] (the "Certificates"), in [_] classes (each, a
"Class") as designated in the Prospectus Supplement (as defined below). Pursuant
to this underwriting agreement (the "Agreement"), the Company further proposes
to sell to Banc of America Securities LLC ("BAS") and [________________________]
(each of BAS and [________________________], individually an "Underwriter" and
collectively, the "Underwriters"), severally and not jointly, the Certificates
set forth in Schedule I hereto (the "Underwritten Certificates") in the
respective original principal or notional amounts, as applicable, set forth in
Schedule I. The Certificates represent in the aggregate the entire beneficial
ownership interest in a trust (the "Trust Fund") consisting of a segregated pool
(the "Mortgage Pool") of [___] mortgage loans having an approximate aggregate
principal balance of $[_____________] as of the applicable Cut-off Date
specified in Schedule I hereto (collectively, the "Mortgage Loans") secured by
first liens on the borrowers' fee or leasehold interests in conventional,
multifamily and commercial properties (the "Mortgaged Properties"). The
Certificates will be issued on [__________], 20[__] (the "Closing Date")
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), dated as of [__________], 20[__], among the Company, Bank of
America, N.A., as master servicer (the "Master Servicer"), [_________________],
as special servicer (the "Special Servicer") and [_________________], as trustee
(in such capacity, the "Trustee") and REMIC administrator (in such capacity the
"REMIC Administrator"). The Mortgage Loans will be acquired by the Company from
Bank of America, N.A. ("Mortgage Loan Seller") pursuant to a mortgage loan
purchase and sale agreement, dated as of [__________], 20[__] (the "Mortgage
Loan Purchase Agreement"), between Bank of America and the Company. This
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreement are sometimes collectively referred to herein as the "Transaction
Agreements." One or more separate real estate mortgage investment conduit
("REMIC") elections will be made with respect to the Trust Fund for federal
income tax purposes. The Underwritten Certificates and the Mortgage Pool are
described more fully in Schedule I hereto and in a registration statement
furnished to you by the Company.
At or prior to the time when sales to investors of the Underwritten
Certificates were first made, which was approximately [_________] on
[__________], 20[__] (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information"): (i) the
Company's Free Writing Prospectus dated[__________], 20[__] (the cover page of
which is attached hereto as Annex A) to the Base Prospectus (defined below) and
the Base Prospectus (collectively with such Free Writing Prospectus, the
"Transaction FWP"), (ii) a Term Sheet dated as of [__________], 20[__] (the
"Term Sheet"), (iii) the information attached hereto on Schedule III and (iv)
each "free writing prospectus" (as defined pursuant to Rule 405 under the
Securities Act) (a "Free Writing Prospectus"). If, subsequent to the date of
this Agreement, the Company and the Underwriters determine 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 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 Underwritten Certificates, then "Time of Sale Information"
will refer to the information conveyed 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").
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, each
Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-[_____])
on Form S-3 for the registration of Commercial Mortgage Pass-Through
Certificates, issuable in series, including the Underwritten Certificates,
under the Securities Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Company meets the requirements for use of Form S-3 under the 1933 Act, and
such registration statement, as amended at the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules
and regulations thereunder. The Company proposes to file with the
Commission, with your consent, the prospectus dated [__________], 20[__]
(the "Base Prospectus"), a supplement dated [__________], 20[__] (the
"Prospectus Supplement") to the Base Prospectus, relating to the
Underwritten Certificates and the method of distribution thereof, and has
previously advised you of all further information (financial and other)
with respect to the Underwritten Certificates and the Mortgage Pool to be
set forth therein. Such registration statement (No. 333-[_____]),
including all exhibits thereto, is referred to herein as the "Registration
Statement"; and the Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto authorized by
the Company prior to the Closing Date for use in connection with the
offering of the Underwritten Certificates, are hereinafter referred to as
the "Prospectus". If so stated in the Prospectus Supplement, the Company
will file with the Commission within fifteen days of the issuance of the
Underwritten Certificates, a report on Form 8-K ("8-K") setting forth
specific information concerning the Mortgage Pool and the Underwritten
Certificates to the extent that such information is not set forth in the
Prospectus Supplement. As used herein, "Pool Information" means the
mortgage pool information reflected in the Master Tape and the Prospectus
Supplement. The "Master Tape" shall mean the compilation of information
and data regarding the Mortgage Loans covered by the letter rendered by
[_____________________] (a "hard copy" of which Master Tape was produced
on behalf of the Mortgage Loan Seller) described in Section 6(h)(2) in
this Agreement.
(b) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Closing Date, (i) the Registration Statement as of its effective
date or deemed effective date pursuant to Rule 430B under the 1933 Act, as
amended as of any such time, and the Prospectus, as amended or
supplemented as of any such time, complies and will comply in all material
respects with the applicable requirements of the 1933 Act and the rules
and regulations thereunder, (ii) the Registration Statement, as amended as
of any such time, does not include and will not include any untrue
statement of a material fact and does not omit and will not omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, (iii) the Prospectus, as
amended or supplemented as of any such time, does not include and will not
include any untrue statement of a material fact and does not omit and will
not omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and (iv) the Transaction FWP does not include and
will not include any untrue statement of a material fact and does not omit
and will not omit to state any material fact 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 statements contained in or omitted
from the Registration Statement, the Prospectus or the Transaction FWP or
any amendment thereof or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter specifically for use in the Registration
Statement, the Prospectus or the Transaction FWP (such information being
identified in Section 8(b)).
(c) 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 light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation
and warranty with respect to (i) any statements or omissions made in
reliance upon and in conformity with the Underwriter Information or (ii)
any Mortgage Loan Seller's Information contained in or omitted from such
Time of Sale Information. The parties acknowledge that none of the
Underwriters has furnished any Underwriter Information to the Company
expressly for use in the Time of Sale Information.
(d) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriters in their capacity as such) 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 ▇▇▇▇ ▇▇▇) that
constitutes an offer to sell or solicitation of an offer to buy
Certificates other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933
Act, (ii) the Time of Sale Information and (iii) each other written
communication of the Company or its agents and representatives approved in
writing in advance by the Underwriters (each such communication referred
to in clause (ii) and this clause (iii) constituting an "issuer free
writing prospectus", as defined in Rule 433(h) under the 1933 Act, being
referred to as an "Issuer Free Writing Prospectus"). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will
comply, in all material respects with the 1933 Act and the rules and
regulations promulgated thereunder, has been filed or will be filed in
accordance with Section 4 (to the extent required thereby) and did not at
the Time of Sale, and at the Closing Date will not, contain any untrue
statements of a material fact or (when read in conjunction with the other
Time of Sale Information) omit 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; provided that the Company makes no
representation or warranty with respect to (i) any statements or omissions
made in reliance upon and in conformity with the Underwriter Information
or (ii) any Mortgage Loan Seller Information contained in or omitted from
any Issuer Free Writing Prospectus. The parties acknowledge that none of
the Underwriters has furnished any Underwriter Information to the Company
expressly for use in any Issuer Free Writing Prospectus.
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease or operate its properties
and to conduct its business as now conducted by it and to enter into and
perform its obligations under this Agreement, the Mortgage Loan Purchase
Agreement and the Pooling and Servicing Agreement and is conducting its
business so as to comply in all material aspects with all applicable
statutes, ordinances, rules and regulations of the jurisdictions in which
it is conducting business; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business.
(f) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Closing Date, there has not and will not have been (i) any
request by the Commission for any further amendment to the Registration
Statement or the Prospectus or for any additional information, (ii) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or any initiation or threat of any proceeding for such
purpose.
(g) On or prior to the Closing Date, the Company will have entered
into the Pooling and Servicing Agreement, this Agreement and the Mortgage
Loan Purchase Agreement; each of this Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company and each of this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreement constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of the rights of creditors generally, (ii) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations
limit the enforceability of the provisions of this Agreement or the
Mortgage Loan Purchase Agreement that purport to provide indemnification
from securities law liabilities.
(h) As of the Closing Date, the Underwritten Certificates, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement
will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the
Underwritten Certificates will be duly and validly authorized by the
Company and, when delivered to the Underwriters in accordance with the
Pooling and Servicing Agreement against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement.
(i) The Company is not in violation of its certificate of
incorporation or by-laws in any respect and is not in default under any
agreement, indenture or instrument the effect of which violation or
default would be material to the Company or which violation or default
would have a material adverse affect on the performance of its obligations
under this Agreement, the Pooling and Servicing Agreement or the Mortgage
Loan Purchase Agreement. None of the issuance and sale of the Underwritten
Certificates, the execution and delivery by the Company of this Agreement,
the Mortgage Loan Purchase Agreement or the Pooling and Servicing
Agreement, the consummation by the Company of any of the transactions
herein or therein contemplated or compliance by the Company with the
provisions hereof or thereof, did, does or will conflict with or result in
a breach of any term or provision of the certificate of incorporation or
by-laws of the Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default (or an event which, with the
passing of time or notification, or both, would constitute a default)
under, the terms of any indenture or other agreement or instrument to
which the Company is a party or by which it or any material asset is
bound, or any statute, order or regulation applicable to the Company of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company.
(j) There is no action, suit or proceeding against the Company
pending, or, to the knowledge of the Company, threatened, before any
court, arbitrator, administrative agency or other tribunal (i) asserting
the invalidity of this Agreement, the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreement or the Underwritten Certificates, (ii)
seeking to prevent the issuance of the Underwritten Certificates or the
consummation of any of the transactions contemplated by this Agreement,
the Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreement, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement,
the Mortgage Loan Purchase Agreement or the Underwritten Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Underwritten Certificates as described in the Prospectus and the Time of
Sale Information.
(k) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement,
the Prospectus or the Time of Sale Information or to be filed as exhibits
to the Registration Statement which have not been so described or referred
to therein or so filed or incorporated by reference as exhibits thereto.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Closing Date will have
been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Underwritten Certificates by the Underwriters, and any recordation of the
respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed.
(m) The Company possesses 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
operated by it, and the Company has not received 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 any unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company.
(n) The Company acknowledges and agrees that: (i) the purchase and
sale of the Underwritten Certificates pursuant to this Agreement,
including the determination of the public offering price of the
Underwritten Certificates and any related discounts and commissions, is an
arm's-length commercial transaction between the Company, on the one hand,
and the several Underwriters, 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 each 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) no Underwriter has assumed or will 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 such 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 several Underwriters and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation
to disclose any of such interests by virtue of any fiduciary or advisory
relationship; and (v) the Underwriters have 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.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the several
Underwriters, or any of them, with respect to the subject matter hereof.
The Company hereby waives and releases, to the fullest extent permitted by
law, any claims that the Company may have against the several Underwriters
with respect to any breach or alleged breach of fiduciary duty.
(o) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the delivery and
sale of the Underwritten Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom)
have been or will be paid at or prior to the Closing Date.
(p) Neither the Company nor the Trust Fund is, and neither the sale
of the Underwritten Certificates in the manner contemplated by the
Prospectus, nor the application by the Company of proceeds therefrom, nor
the activities of the Trust Fund pursuant to the Pooling and Servicing
Agreement will cause the Company or the Trust Fund to be, an "investment
company" or under the control of an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(q) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company reported the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and will
report the sale of the Underwritten Certificates to the Underwriters
pursuant to this Agreement as a sale of the interests in the Mortgage
Loans evidenced by the Underwritten Certificates. The consideration
received by the Company upon the sale of the Underwritten Certificates to
the Underwriters will constitute reasonably equivalent value and fair
consideration for the Underwritten Certificates. The Company will be
solvent at all relevant times prior to, and will not be rendered insolvent
by, the sale of the Underwritten Certificates to the Underwriters. In
addition, the Company was solvent at all relevant times prior to, and was
not rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund. The Company is not selling the
Underwritten Certificates to the Underwriters and did not transfer the
Mortgage Loans to the Trustee on behalf of the Trust Fund with any intent
to hinder, delay or defraud any of the creditors of the Company.
(r) At the Closing Date, the respective classes of Underwritten
Certificates shall continue to have maintained ratings no lower than those
set forth in Schedule I hereto assigned by the nationally recognized
statistical rating organizations identified in Schedule I hereto
(individually, the "Rating Agency" and collectively, the "Rating
Agencies") and such ratings shall have not been placed on a negative
ratings watch or otherwise qualified.
(s) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner
of, each Mortgage Loan free and clear of any pledge, mortgage, lien,
security interest or other encumbrance of any other person, except for any
retained servicing.
(t) On the Closing Date, the Mortgage Loans will have been duly and
validly assigned and delivered by the Company to the Trustee.
(u) The Transaction FWP and the Prospectus Supplement shall have
been filed with the Commission in accordance with Rule 433 and Rule 424,
respectively, under the 1933 Act.
(v) At the Closing Date, each of the representations and warranties
of the Company set forth in the Pooling and Servicing Agreement and of the
Mortgage Loan Seller in the Mortgage Loan Purchase Agreement will be true
and correct in all material respects.
(w) 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 1933 Act.
(ii) Bank of America, N.A. ("Bank of America") represents and
warrants to, and agrees with, each Underwriter, that:
(a) Bank of America is a national banking association validly
existing under the laws of the United States of America and possesses all
requisite authority, power, licenses, permits and franchises to carry on
its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement and is
conducting its business so as to comply in all material aspects with all
applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business.
(b) This Agreement has been duly and validly authorized, executed
and delivered by Bank of America and, assuming due authorization,
execution and delivery hereof by the Company and the Underwriters,
constitutes a legal, valid and binding obligation of Bank of America,
enforceable against Bank of America in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights in general, as they may be applied in the context of the
insolvency of a national banking association, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws.
(c) The execution and delivery of this Agreement by Bank of America
and Bank of America's performance and compliance with the terms of this
Agreement will not (A) violate Bank of America's amended and restated
articles of association or by-laws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C)
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
contract, agreement or other instrument to which Bank of America is a
party or by which Bank of America is bound.
(d) Bank of America is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would materially and adversely affect the condition
(financial or other) or operations of Bank of America or its properties or
have consequences that would materially and adversely affect its
performance hereunder.
(e) Bank of America is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would materially and adversely affect the ability
of Bank of America to perform its obligations under this Agreement or that
requires the consent of any third person in order to execute this
Agreement or to enable the performance by Bank of America of its
obligations under this Agreement (except to the extent such consent has
been obtained).
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Bank of America of, or compliance by Bank of America with,
this Agreement or the consummation of the transactions contemplated by
this Agreement except as have previously been obtained.
(g) Bank of America acknowledges and agrees that: (i) the purchase
and sale of the Underwritten Certificates pursuant to this Agreement,
including the determination of the public offering price of the
Underwritten Certificates and any related discounts and commissions, is an
arm's-length commercial transaction between Bank of America, on the one
hand, and the several Underwriters, on the other hand, and Bank of America
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 each Underwriter is and has
been acting solely as a principal and is not the agent or fiduciary of
Bank of America, or its affiliates, stockholders, creditors or employees
or any other party; (iii) no Underwriter has assumed or will assume an
advisory or fiduciary responsibility in favor of Bank of America with
respect to any of the transactions contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or
is currently advising Bank of America on other matters) or any other
obligation to Bank of America except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of Bank of America and that the several
Underwriters have no obligation to disclose any of such interests by
virtue of any fiduciary or advisory relationship; and (v) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and Bank of America has
consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between Bank of America and the several
Underwriters, or any of them, with respect to the subject matter hereof.
Bank of America hereby waives and releases, to the fullest extent
permitted by law, any claims that Bank of America may have against the
several Underwriters with respect to any breach or alleged breach of
fiduciary duty.
(h) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the delivery and
sale of the Underwritten Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom)
have been or will be paid at or prior to the Closing Date.
(i) No litigation is pending or, to the best of Bank of America's
knowledge, threatened against Bank of America that would either (i) assert
the invalidity of this Agreement, (ii) prohibit Bank of America's entering
into this Agreement or (iii) materially and adversely affect the
performance by Bank of America of its obligations under this Agreement.
(j) Each representation and warranty of the Company set forth in
Section 1(i) hereof is true and correct as of the date hereof or as of the
date specified in such representation and warranty.
(iii) Each Underwriter represents and warrants to the Company,
severally and not jointly, that as of the date hereof and as of the Closing
Date, (A) such Underwriter has complied in all material respects with all of its
obligations under Section 4 hereof and (B) with respect to all Free Writing
Prospectus, if any, provided by such Underwriter to the Company pursuant to
Section 4(b), such Free Writing Prospectuses are accurate in all material
respects (taking into account the assumptions explicitly set forth or otherwise
referred to in any Free Writing Prospectus, the Term Sheet, the Transaction FWP
or the Prospectus Supplement; provided that the underlying data regarding the
Mortgage Loans, and the related borrowers and Mortgaged Properties, provided to
the Underwriters by the Mortgage Loan Seller is accurate and complete in all
material respects) and constitute a complete set of all Free Writing
Prospectuses prepared and distributed by such Underwriter that are required to
be filed with the Commission pursuant to Rule 433 of the 1933 Act.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the applicable purchase prices set
forth in Schedule I hereto, the respective principal or notional amounts, as
applicable, of the Underwritten Certificates set forth opposite the name of each
Underwriter set forth in Schedule II hereto, and any additional portions of the
Underwritten Certificates that any such Underwriter may be obligated to purchase
pursuant to Section 10, in all cases plus accrued interest as set forth in
Schedule I.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, at the location(s), on
the Closing Date at the time specified in Schedule I hereto (or such later date
not later than ten business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Company or as provided in Section 10 hereof. Delivery of the Underwritten
Certificates shall be made either directly to you or through the facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I hereto, for the
respective accounts of the Underwriters against payment by the respective
Underwriters of the purchase price therefor in immediately available funds wired
to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and you. Any Class of Underwritten
Certificates to be delivered through the facilities of DTC shall be represented
by one or more global Certificates registered in the name of Cede & Co., as
nominee of DTC, which global Certificate(s) shall be placed in the custody of
DTC not later than 10:00 a.m. (New York City time) on the Closing Date pursuant
to a custodial arrangement to be entered into between the Trustee or its agent
and DTC. Unless delivered through the facilities of DTC, the Underwritten
Certificates shall be in fully registered certificated form, in such
denominations and registered in such names as you may have requested in writing
not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including
the global Certificates representing the Underwritten Certificates to be
delivered through the facilities of DTC, available for inspection, checking and,
if applicable, packaging, by you in Charlotte, North Carolina, not later than
the close of business (New York City time) on the business day preceding the
Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Underwritten Certificates that are to be delivered through the facilities
of DTC shall include, if the context so permits, actions taken or to be taken
with respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without limitation,
in and from the State of New York, as set forth in the Prospectus Supplement. It
is further understood that the Company, in reliance upon an exemption from the
Attorney General of the State of New York to be granted pursuant to Policy
Statement 104 and 105, has not and will not file the offering pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Underwritten Certificates which are not "mortgage related securities" as
defined in the Securities Exchange Act of 1934, as amended (the "1934 Act").
(b) It is understood that each Underwriter may prepare and provide
to prospective investors certain Free Writing Prospectuses subject to the
following conditions:
(i) Unless preceded or accompanied by the Base Prospectus, no
Underwriter shall convey or deliver any written communication to any
person in connection with the initial offering of the Underwritten
Certificates, unless such written communication (A) is made in reliance on
Rule 134 under the 1933 Act, (B) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act or (C) constitutes Time of
Sale Information or a Free Writing Prospectus that does not constitute
Time of Sale Information. The Underwriters 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 1933 Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the 1933 Act or any
materials in reliance on the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇
Structured Asset Corporation and the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the
Public Securities Association or the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to
the Public Securities Association.
(ii) Each Underwriter shall deliver to the Company, no later than
one business day prior to the date of first use thereof, (A) any Free
Writing Prospectus that was prepared by or on behalf of an Underwriter (an
"Underwriting Free Writing Prospectus") that contains any "issuer
information", as defined in Rule 433(h) under the 1933 Act and footnote
271 of the Commission's Securities Offering Reform Release No. 33-8591
("Issuer Information") (which the parties hereto agree includes, without
limitation, Mortgage Loan Seller's Information), and (B) any Free Writing
Prospectus or portion thereof that contains only a description of the
final terms of the Certificates. Notwithstanding the foregoing, any Free
Writing Prospectus that contains only ABS Informational and Computational
Materials may be delivered by an Underwriter to the Company not later than
the later of (a) one business day prior to the due date for filing of the
Prospectus pursuant to Rule 424(b) under the 1933 Act or (b) the date of
first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by such
Underwriter pursuant to Section 4(b) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective purchasers of Underwritten Certificates by such Underwriter in
connection with its offer and sale of the Underwritten Certificates.
(iv) Each Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 4(b), when viewed together with all other Time of Sale
Information, is not, as of the Time of Sale, and will not as of the
Closing Date, include any untrue statement of material fact or omit any
material fact necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that such Underwriter makes no representation or warranty to the
extent such misstatements or omissions were the result of any inaccurate
or inadequate Issuer Information supplied by the Company or the Mortgage
Loan Seller to the Underwriter, which information was not corrected by
Corrective Information subsequently supplied by the Company or the
Mortgage Loan Seller to such Underwriter within a reasonable period of
time prior to the Time of Sale.
(c) The Company agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Company pursuant to Section 4(b); 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.
Notwithstanding the foregoing, the Company shall not be required to
file (1) Issuer Information contained in any Underwriter Free Writing Prospectus
or Free Writing Prospectus of any other offering participant other than the
company, 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 (2) any Free Writing Prospectus
or portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms thereof.
(d) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b) 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 shall be filed by the Company with the Commission 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
shall 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
Underwritten Certificates pursuant to Rule 424(b) under the 1933 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 4(e)(iii) shall, 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 Underwriter or
any other offering participant other than the Company, 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 not reflect the final terms
thereof;
(e) Each Underwriter shall file with the Commission any Free Writing
Prospectus that is used or referred to by any Underwriter and distributed by or
on behalf of any 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.
(f) Notwithstanding the provisions of Section 4(g), each Underwriter
shall file with the Commission any Free Writing Prospectus for which such
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.
(g) Notwithstanding the provisions of Sections 4(e) and 4(g),
neither the Issuer nor any 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.
(h) The Company and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain substantially 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 depositor, the issuing trust 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 1-800-294-1322 or
you email a request to
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(i) 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, in light of the circumstances under which they
were made, not misleading (a "Defective Issuer Free Writing Prospectus"), the
Company shall notify the Underwriters thereof within one business day after
discovery and the Company shall, if requested by the Underwriters, prepare and
deliver to the Underwriters 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").
(j) (i) In the event that any Underwriter becomes aware that, as of
the Time of Sale, any Underwriter Free Writing Prospectus delivered to a
purchaser of an Underwritten Certificate contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained therein, 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.
(ii) Provided that the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, the Underwriters shall, if requested
by the Company:
(A) Prepare a Free Writing Prospectus that 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");
(B) Deliver the Corrected Free Writing Prospectus to each purchaser
of Underwritten Certificates which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such purchaser;
(C) Notify such purchaser in a prominent fashion that the prior
contract of sale may be terminated, and of such purchaser's rights with
respect to such contract of sale;
(D) Provide such purchaser with an opportunity to affirmatively
agree to purchase such Underwritten Certificates on the terms described in
the Corrected Free Writing Prospectus; and
(E) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in Section
IV.2.c of the Commission's Securities Offering Reform Release No. 33-8591.
In the event that the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus, and the Underwriters shall in good faith incur
any costs, damages, fail costs and price adjustments to a purchaser in
connection with the reformation or termination of the contract of sale with the
purchaser, the Company agrees to reimburse the Underwriters for such costs,
damages, fail costs and price adjustments. Notwithstanding any of the foregoing,
the Underwriters shall use reasonable efforts to effect a reformation of the
contract of sale but are under no obligation to do so.
(k) Each Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Underwritten Certificates to a prospective purchaser
of Underwritten Certificates unless such information is preceded or accompanied
by the final Prospectus
5. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) The Company shall not prepare, use, authorize, approve, refer to
or file any Issuer Free Writing Prospectus or any amendment to the Registration
Statement, any supplement to the Base Prospectus relating to or affecting the
Underwritten Certificates, unless the Company has furnished a copy of such
Issuer Free Writing Prospectus, amendment or supplement to you for your review
prior to filing, and will not prepare, use, file, authorize, approve, refer to
or file any such Issuer Free Writing Prospectus and not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, the Company shall cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424 under the 1933 Act or shall cause
the Prospectus Supplement and any Issuer Free Writing Prospectus, to the extent
required by Rule 433 of the 1933 Act to be filed with the Commission pursuant to
said Rule 424. The Company promptly shall advise you or counsel for the
Underwriters (i) when the Prospectus Supplement shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission to amend the Registration Statement or supplement
the Prospectus Supplement or for any additional information in respect of the
offering contemplated hereby, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto which shall have become effective on or prior
to the Closing Date 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 Underwritten Certificates for sale
in any jurisdiction or the institution or threatening of any proceeding for that
purpose. The Company shall use its best efforts to prevent the issuance of any
such stop order or suspension and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when the Prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the 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 Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the Company promptly will prepare and file with the
Commission, at the expense of the Company, subject to paragraph (a) of this
Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such amendment
or supplement is required to be contained in a post-effective amendment to the
Registration Statement, the Company will use its best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and, upon request, to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and
each such amendment and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the 1933 Act, as many copies of the Transaction
FWP, any Issuer Free Writing Prospectus, the Prospectus Supplement and the Base
Prospectus and any amendments and supplements thereto as you may reasonably
request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Underwritten Certificates for sale under the laws of such jurisdictions as you
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Certificates.
(e) The Company will pay, or cause to be paid, all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to, the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Underwritten Certificates; the fees and
disbursements of accountants for the Company; the reasonable out-of-pocket costs
and expenses in connection with the qualification or exemption of the
Underwritten Certificates under state securities or "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel in connection
therewith, in connection with the preparation of any "Blue Sky" survey and in
connection with any determination of the eligibility of the Underwritten
Certificates for investment by institutional investors and the preparation of
any legal investment survey; the expenses of printing any such "Blue Sky" survey
and legal investment survey; the costs and expenses in connection with the
preparation, printing and filing of the Registration Statement (including
exhibits thereto), the Base Prospectus, the Transaction FWP, if any, any Issuer
Free Writing Prospectus, if any, and the Prospectus Supplement, the preparation
and printing of this Agreement and the delivery to the Underwriters of such
copies of the Base Prospectus and each Transaction FWP, if any, and Prospectus
Supplement as you may reasonably request; the fees of the Rating Agencies that
are rating the Underwritten Certificates; and the reasonable fees and
disbursements of counsel to the Underwriters. Except as provided above or in
Section 7, the Underwriters shall be responsible for paying all other costs and
expenses incurred by them in connection with the purchase and sale of the
Underwritten Certificates.
(f) To the extent that the Pooling and Servicing Agreement provides
that the Underwriters are to receive any notices or reports, or have any other
rights thereunder, the Company will enforce the rights of the Underwriters under
the Pooling and Servicing Agreement and will not consent to any amendment of the
Pooling and Servicing Agreement that would adversely affect such rights of the
Underwriters.
(g) The Company shall, as to itself, and the Company, or pursuant to
the Pooling and Servicing Agreement, the Trustee, will be required to, as to the
Trust Fund, satisfy and comply with all reporting requirements of the 1934 Act,
and the rules and regulations thereunder. The Company will also file with the
Commission all Underwriter Free Writing Prospectus (as defined herein) provided
to the Company by an Underwriter and identified by it as such within the time
period allotted for such filing pursuant to the Rule 433 of the 1933 Act;
provided, however, that prior to such filing of any Free Writing Prospectus by
the Company, each Underwriter must comply with its obligations pursuant to
Section 4(c). The Company shall file any corrected Free Writing Prospectus
described in Section 4(m) as soon as practicable following receipt thereof.
(h) The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus or any
materials used in a Road Show (as defined in Rule 433 of the ▇▇▇▇ ▇▇▇) that is
not filed with the Commission in accordance with Rule 433 under the Securities
Act.
6. Conditions to the Obligations of the Underwriters. The obligation
of each Underwriter hereunder to purchase its allocated share of the
Underwritten 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, as of the date the
Prospectus Supplement or any supplement thereto is filed with the Commission 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 Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or, to the Company's
knowledge, threatened; and the Prospectus Supplement and each Issuer Free
Writing Prospectus shall have been filed or transmitted for filing with the
Commission in accordance with Rule 424 under the 1933 Act (in the case of an
Issuer Free Writing Prospectus, to the extent required by Rule 433 under the
▇▇▇▇ ▇▇▇);
(b) You shall have received from [___________________________],
counsel for the Underwriters, one or more favorable opinions, dated the Closing
Date, as to such matters regarding the Underwritten Certificates as you may
reasonably request;
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the Closing
Date, to the effect that: (i) the representations and warranties of the Company
in the Transaction Agreements are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on the Closing Date;
and (ii) the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part that are required hereby
to be performed or satisfied at or prior to the Closing Date; and Bank of
America shall have delivered to you a certificate of Bank of America, signed by
an authorized officer of Bank of America and dated the Closing Date, of the
President, a Principal, a Senior Vice President or a Vice President of Bank of
America to the effect that: (i) the representations and warranties of Bank of
America in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date, and
(ii) Bank of America has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(d) You shall have received (i) with respect to Bank of America, a
certificate of the Office of the Comptroller of the Currency, and (ii) with
respect to the Company, a good standing certificate from the Secretary of State
of the State of Delaware, each dated not earlier than 30 days prior to the
Closing Date;
(e) (i) You shall have received from the Secretary or an assistant
secretary of the Company, in his or her individual capacity, a certificate,
dated the Closing Date, to the effect that: (x) each individual who, as an
officer or representative of the Company, signed this Agreement, or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of the Company) has occurred since the date of the good standing
certificate referred to in paragraph 6(d) above which has affected the good
standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement; and (ii) you shall have
received from the Secretary or an Assistant Secretary of Bank of America, in his
or her individual capacity, a certificate, dated the Closing Date, to the effect
that: (x) each individual who, as an officer or representative of Bank of
America, signed this Agreement or any other document or certificate delivered on
or before the Closing Date in connection with the transactions contemplated
herein, was at the respective times of such signing and delivery, and is as of
the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures; and (y) no event
(including, without limitation, any act or omission on the part of Bank of
America) has occurred since the date of the certificate referred to in paragraph
6(d) above which has affected the existence of Bank of America under the laws of
the United States of America. Such certificate shall be accompanied by true and
complete copies (certified as such by the Secretary or an Assistant Secretary of
Bank of America) of the articles of association and by-laws of Bank of America,
as in effect on the Closing Date, and of the resolutions of Bank of America and
any required shareholder consent relating to the transactions contemplated in
this Agreement;
(f) You shall have received from [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP], special counsel for the Company, one or more favorable opinions, dated the
Closing Date and satisfactory in form and substance to you and counsel for the
Underwriters substantially to the effect that:
(i) The Registration Statement, as of its effective date, and the
Prospectus, as of its date (in each case, with the exception of any
information incorporated by reference therein and any financial,
numerical, statistical or quantitative information included therein, as to
which we express no view), appear on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act
and the rules and regulations thereunder applicable to such documents as
of the relevant date;
(ii) The statements in the Prospectus under the headings "CERTAIN
FEDERAL INCOME TAX CONSEQUENCES" and "CERTAIN ERISA CONSIDERATIONS",
insofar as such statements purport to summarize matters of federal law or
legal conclusions with respect thereto, have been reviewed by such counsel
and are correct in all material respects;
(iii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund created by the Pooling and Servicing Agreement is not required to be
registered under the Investment Company Act;
(iv) The Underwritten Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement will be validly
issued and outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement;
(v) Each of this Agreement, the Mortgage Loan Purchase Agreement and
the Pooling and Servicing Agreement constitutes the legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, liquidation, receivership, moratorium,
reorganization and similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and except that the enforcement of
rights with respect to indemnification and contribution obligations and:
(a) provisions purporting to waive or limit rights to trial by jury, oral
amendments to written agreements or rights of set-off, (b) provisions
relating to submission to jurisdiction, venue or service of process, (c)
interest on interest provisions, or (d) severability clauses may be
limited by applicable law or considerations of public policy;
(vi) The statements contained in the Prospectus Supplement under the
heading "DESCRIPTION OF THE CERTIFICATES" insofar as such statements
purport to summarize material terms of the Underwritten Certificates are
correct in all material respects; and
(vii) [Assuming compliance with all relevant provisions of the
Pooling and Servicing Agreement as in effect on the Closing Date, (a) the
REMIC will qualify for treatment for federal income tax purposes as a
"real estate mortgage investment conduit", as defined in Section 860D of
the Code; and (b) the Class A Certificates, Class B Certificates [, Class
X] and Class C Certificates will evidence the "regular interests" in the
REMIC and the Class R Certificates will constitute the sole class of
"residual interests" in the REMIC within the meaning of the Code.]
[Assuming compliance with all relevant provisions of the Pooling and
Servicing Agreement as in effect on the Closing Date, the Trust Fund will
be classified as a grantor trust under Subpart E, part I of subchapter J
of the Code, and not as an association taxable as a corporation or as a
partnership.]
Such opinions may express their reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement, the Mortgage Loan Purchase Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto. Such
opinion may be qualified as an opinion only on the laws of the State of New York
and the federal law of the United States.
In one or more separate letters addressed only to the Underwriters,
special counsel to the Company, [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP], shall
additionally state that, based on conferences and telephone conversations with
representatives of Bank of America, the Underwriters, the Company, the Trustee,
the REMIC Administrator, the Master Servicer, the Special Servicer and their
respective counsel, and (with limited exception) without having reviewed any of
the mortgage notes, mortgages or other documents relating to the Mortgage Loans
or made any inquiry of any originator of any Mortgage Loan, nothing has come to
such special counsel's attention that would lead it to believe that (i) the
Prospectus (other than any accounting, financial or statistical information
included therein or information relating to the Master Servicer, the Special
Servicer or the Trustee contained in or omitted from the Prospectus), included
or includes an untrue statement of a material fact or omitted 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, at the date of the
Prospectus Supplement or at the Closing Date, (ii) the Registration Statement
(other than with respect to any exhibits filed therewith or any information
incorporated by reference), at its effective date, included an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(iii) any Issuer Free Writing Prospectus at its effective date, included an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading.
(g) You shall have received from [__________], in-house counsel for
the Company and Bank of America, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to you and counsel for the Underwriters, to
the effect that:
(1) (A) The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware, and (B) Bank of America is a national banking association,
duly organized, validly existing and in good standing under the laws
of the United States.
(2) Each of the Company and Bank of America has all requisite
corporate power and authority to execute, deliver and perform its
obligations under each of the Transaction Agreements to which it is
a party and, with respect to the Company, to own its properties and
conduct its business as described in the Prospectus and Prospectus
Supplement.
(3) The execution, delivery and performance of each of the
Transaction Agreements by each of the Company and Bank of America,
as applicable, and, with respect to the Company, the issuance of the
Underwritten Certificates have been duly authorized by all necessary
corporate action of each of the Company and Bank of America.
(4) Each of the Transaction Agreements has been duly executed
and delivered by each of the Company and Bank of America, as
applicable.
(5) The Company has no subsidiaries and, to the best of such
counsel's knowledge, is not required to be qualified or licensed to
do business as a foreign corporation in any jurisdiction.
(6) (A) Neither the issuance or sale of the Underwritten
Certificates nor the execution, delivery or performance of the terms
of the Transaction Agreements to which the Company is a party will
result in the breach of any term or provision of the certificate of
incorporation or by-laws of the Company or conflict with, result in
a breach or violation of or the acceleration of indebtedness under
or constitute a material default or violation under, the terms of
any indenture, instrument, document or agreement of which such
counsel has knowledge to which the Company is a party or by which it
is bound, or any law or statute applicable to and material to the
performance of its obligations under the Transaction Agreements to
which the Company is a party, or any order or decree of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company and known to such counsel as being
applicable to the Company, and (B) the execution, delivery or
performance of the terms of the Transaction Agreements to which Bank
of America is a party will not result in the breach of any term or
provision of the articles of association or by-laws of Bank of
America or conflict with, result in a material breach or violation
of or the acceleration of indebtedness under or constitute a
material default or violation under, the terms of any indenture,
instrument, document or agreement or instrument of which such
counsel has knowledge to which Bank of America is a party or by
which it is bound, or any law or statute as being applicable to Bank
of America and material to the performance of its obligations under
all the agreements that are required hereby to be performed at or
prior to the Closing Date, or any order or decree of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Bank of America and known to such counsel as being
applicable to Bank of America.
(7) (A) No consent, approval, authorization of, registration
or filing with, or notice to, any State of Delaware (pursuant to the
Delaware General Corporation Law) or federal governmental or
regulatory authority, agency, department, commission, board, bureau,
body or instrumentality is required for the execution, delivery or
performance of, or compliance by, the Company with the Transaction
Agreements to which it is a party, and (B) no consent, approval,
authorization of, registration or filing with, or notice to, any
federal governmental or regulatory authority, agency, department,
commission, board, bureau, body or instrumentality is required for
the execution, delivery or performance of, or compliance by, Bank of
America with the Transaction Agreements to which it is a party,
except such as may be required under the "Blue Sky" laws of any
jurisdiction in connection with the purchase and the offering and
sale of the Certificates by the Underwriters and any recordation of
the assignment of the Mortgage Loans required by the Transaction
Agreements that have not yet been completed.
(8) To the best of such counsel's knowledge, there is no
action, suit or proceeding against, or investigation of, either of
the Company or Bank of America pending or threatened before any
court, administrative agency or other tribunal which, either
individually or in the aggregate, (A) asserts the invalidity of this
Agreement or, with respect to the Company, the Underwritten
Certificates, (B) seeks to prevent the consummation of any of the
transactions contemplated by this Agreement or, with respect to the
Company, the issuance of the Underwritten Certificates, or (C) would
materially and adversely affect the performance by either of the
Company or Bank of America of its obligations under, or the validity
or enforceability of, the Transaction Agreements to which it is a
party or, with respect to the Company, the Underwritten
Certificates.
(h) You shall have received from [____________________], certified
public accountants, a letter dated the date of the Prospectus Supplement
(together with a bring-down letter dated as of the Closing Date) and
satisfactory in form and substance to you and counsel for the Underwriters, to
the following effect:
(1) they have performed certain specified procedures as a
result of which they have determined that the information of an
accounting, financial or statistical nature set forth in the
Transaction FWP and the Prospectus Supplement under the captions
"SUMMARY OF PROSPECTUS SUPPLEMENT," "DESCRIPTION OF THE MORTGAGE
POOL" and "YIELD AND MATURITY CONSIDERATIONS" and on Annex A agrees
with the Master Tape prepared by or on behalf of the Mortgage Loan
Seller, unless non-material deviations are otherwise noted in such
letter; and
(2) they have compared the data contained in the Master Tape
referred to in the immediately preceding clause (1) to information
contained in the Mortgage Loan files and in such other sources as
shall be specified by them, and found such data and information to
be in agreement in all material respects, unless non-material
deviations are otherwise noted in such letter;
(i) You shall have received written confirmation from the Rating
Agencies that the ratings assigned to the Underwritten Certificates on the
Closing Date are as described on Schedule I hereto and that, as of the Closing
Date, no notice has been given of (i) any intended or possible downgrading or
(ii) any review or possible changes in such ratings;
(j) You shall have received from an authorized officer of the
Trustee, in his or her individual capacity, a certificate, dated the Closing
Date, to the effect that the information under the heading "THE TRUSTEE" in the
Prospectus Supplement is true and correct in all material respects;
(k) You shall have received from [____________________], counsel for
the Trustee, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters;
(l) You shall have received from an authorized officer of the Master
Servicer, in his or her individual capacity, a certificate, dated the Closing
Date, to the effect that the information relating to the Master Servicer under
the heading "THE SERVICERS-The Master Servicer" in the Prospectus Supplement, is
true and correct in all material respects;
(m) You shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel for the Master Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters;
(n) You shall have received from an authorized officer of the
Special Servicer, in his or her individual capacity, a certificate, dated the
Closing Date, to the effect that the information relating to the Special
Servicer under the heading "THE SERVICERS--The Special Servicer" in the
Prospectus Supplement, is true and correct in all material respects;
(o) You shall have received from [____________________], counsel for
the Special Servicer, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters;
(p) You shall have received from [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP], counsel for the Mortgage Loan Seller, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters and counsel
for the Underwriters;
(q) You shall have received copies of any opinions from [Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP], special counsel to the Company, supplied to the Rating
Agencies relating to certain matters with respect to the Underwritten
Certificates, the transfer of the Mortgage Loans and any other matters related
thereto. Any such opinions shall be dated the Closing Date and addressed to the
Underwriters;
(r) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to you and counsel for the Underwriters, and you and such
counsel shall have received such additional information, certificates and
documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by you. Notice of such cancellation shall be given to
the Company in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company and
Bank of America will reimburse the Underwriters severally, upon demand, for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Underwritten Certificates.
8. Indemnification.
(a) The Company and Bank of America, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act and
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (1) any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Base Prospectus or
the Prospectus Supplement (or any amendment thereof or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading (including, without limitation, (2) any untrue statement
or alleged untrue statement of a material fact contained in any
Issuer Free Writing Prospectus or any Issuer Information contained
in any Underwriter Free Writing Prospectus or in any Free Writing
Prospectus which is required to be filed pursuant to Section 4, or
the omission or alleged omission to state a material fact necessary
to make the statements therein (when read in conjunction with the
other Time of Sale Information), 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 any
Underwriter within a reasonable period of time prior to the Time of
Sale or (3) any such untrue statement or omission or alleged untrue
statement or omission resulting from the Company's manipulation or
aggregation of data contained in the Mortgage Loan Specific
Information, to the extent that indemnification therefor is not
provided by Bank of America under the Indemnification Agreement (as
defined below)); provided that the foregoing indemnity shall not
inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting
claims giving rise to any such losses, claims, damages, expenses or
liabilities purchased Underwritten Certificates if such untrue
statement or omission or alleged untrue statement or omission made
in any Transaction FWP or Prospectus is eliminated or remedied in
the Prospectus or a corrected and amended Prospectus, as applicable,
and, if required by law, a copy of the Prospectus shall not have
been made available to such person at or prior to the written
confirmation of the sale of such Certificates to such person.
Notwithstanding any of the foregoing, this indemnity agreement shall
not apply to any loss, liability, claim, damage or expense to the
extent any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon an
untrue statement or omission with respect to the Mortgage Loan
Specific Information, as such term is defined in the indemnification
agreement, dated the date hereof, among Bank of America, the Company
and the Underwriters (the "Indemnification Agreement"), other than
with respect to the Company's manipulation or aggregation of data
(or failure to manipulate or aggregate such data) contained in the
Mortgage Loan Specific Information as provided above in this Section
8(a)(i);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided,
however, this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information (as
specified in Section 8(b) below) furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or in the Base Prospectus, any Transaction FWP
or the Prospectus Supplement (or any amendment thereof or supplement
thereto).
This indemnity shall be in addition to any liability the Company or
Bank of America may otherwise have.
(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or in
the Base Prospectus or the Prospectus Supplement (or any amendment thereof or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or in the Base Prospectus or
the Prospectus Supplement (or any amendment thereof or supplement thereto);
provided that no Underwriter shall be obligated to so indemnify and hold
harmless (i) to the extent that the Company is entitled to indemnification or
contribution therefore under the indemnity of the Sellers set forth in the
Indemnification Agreement, (ii) with respect to information that is also
contained in the Time of Sale Information or (iii) to the extent such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information to any Underwriter
which was not corrected by Corrective Information subsequently supplied by the
Company or any Seller to the Underwriters within a reasonable period of time
prior to the Time of Sale. In addition, each Underwriter, severally but not
jointly, shall indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all losses, liabilities, claims and
damages as incurred arising out of any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
necessary in order to make the statements contained in any Underwriter Free
Writing Prospectus (when read in conjunction with the Time of Sale Information,
was required to be stated therein or necessary to make the statements therein
not misleading; provided that no such material misstatement or omission arises
from or is based upon an error or omission in information relating to the
underlying data regarding the Mortgage Loans or the related borrowers or
Mortgaged Properties; provided, further, that any such Underwriter Free Writing
Prospectus was prepared by such Underwriter and distributed by such Underwriter.
Notwithstanding the foregoing, the indemnity in the immediately preceding
sentence will apply only if such misstatement or omission was not also a
misstatement or omission in the Prospectus. It is hereby acknowledged that (i)
[the statements set forth in the first, second and third sentences of the
penultimate paragraph on the cover of the Prospectus Supplement, (ii) the
statements in the paragraph immediately following the table setting forth the
allocations to the Underwriters (the "Allocation Table"), the third immediately
succeeding paragraph following the Allocation Table, and the first sentence of
the penultimate paragraph under the caption "METHOD OF DISTRIBUTION" in the
Prospectus Supplement and (iii)] any Free Writing Prospectus prepared by or on
behalf of the Underwriters (an "Underwriter Free Writing Prospectus") (excluding
any Issuer Information therein), constitute the only written information
furnished to the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or in the Base Prospectus or
the Prospectus Supplement (or any amendment thereof or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have to any indemnified party under this Section 8
(except to the extent such failure has materially prejudiced the indemnifying
party) or from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense in
the defense of any such action and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from the indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have agreed to
the retention of such counsel, or (ii) the indemnifying party shall not have
assumed the defense of such action, with counsel satisfactory to the indemnified
party, within a reasonable period following the indemnifying party's receiving
notice of such action, or (iii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying party or parties be liable for fees and expenses
of more than one counsel (or, in the event the Company is the indemnifying
party, one counsel for each Underwriter) (in addition to any local counsel)
separate from its or their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent (which consent shall not be unreasonably withheld) but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. If an indemnifying
party assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for the unconditional release of the indemnified party in connection
with all matters relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
which release does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party,
without the consent of the indemnified party. If at any time an indemnified
party shall have provided notice requesting an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(d) The indemnity agreements contained in this Section 8 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
(e) Each Underwriter, severally but not jointly, will indemnify and
hold harmless any other Underwriter and each person, if any, who controls such
Underwriter within the meaning of either the 1933 Act or the 1934 Act
(collectively, the "Non-Indemnifying Underwriter") from and against any and all
loss, liability, claim, damage and expense whatsoever, as incurred that arise
out of or are based upon (i) any untrue statement of material fact necessary to
make the statements contained in any Free Writing Prospectus prepared by, or on
behalf of, or used or referred to by, such indemnifying Underwriter not
misleading at the Time of Sale or (ii) the failure of such Indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 8, and agrees to reimburse such Non-Indemnifying Underwriter, as
incurred for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have. If the foregoing indemnity
agreement is for any reason held to be unenforceable although applicable in
accordance with its terms, or if such indemnification is insufficient in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
each Underwriter agrees to pay upon request, as contribution, its proportionate
share, based upon a percentage the numerator of which is the amount of fees
actually received by such Underwriter in connection with the sale of the
Underwritten Certificates, and the denominator of which is the sum of the
aggregate amount of fees actually received by the Underwriters, of any losses,
claims, damages, expenses or liabilities, joint or several, under the 1933 Act
or otherwise, paid or incurred by any Underwriter (including amounts paid by an
Underwriter as contribution), arising out of or based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement, preliminary prospectus, prospectus, prospectus
supplement, or any amendment thereof or supplement thereto, any document which
may be incorporated by reference therein or any other term sheet, computational
materials, or selling or advertising material used by the Underwriters in
connection with the sale of the Underwritten Certificates, or arising out of or
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, and (ii) any act or
omission to act or any alleged act or omission to act by any of the
Underwriters, in connection with any transaction contemplated by this Agreement
or undertaken in preparing for the purchase, sale and delivery of the
Underwritten Certificates; and each Underwriter shall pay such proportionate
share of any legal or other expenses reasonably incurred in connection with
investigating or defending any such loss, claim, damage or liability, or any
action in respect thereof. Notwithstanding the foregoing, each Underwriter shall
not be required to contribute or pay any amount in excess of the fees actually
received by it. In determining the amount of any Underwriter's obligation under
this Section 8(e), appropriate adjustment may be made to reflect any amounts
received by any one or more Underwriters, pursuant to Section 8(a) or 9 of this
Agreement or otherwise, in respect of the claim upon which such obligation is
based. In respect of any claim there shall be credited against the amount of any
Underwriter's obligation under this Section 8(e) any loss, damage, liability or
expense which is paid or incurred by such Underwriter as a result of such claim
being asserted against it, and, if such loss, damage, liability or expense is
paid or incurred by such Underwriter subsequent to any payment by it pursuant to
this Section 8(e), appropriate provision shall be made to effect such credit, by
refund or otherwise. In determining amounts payable pursuant to this Section
8(e), any loss, claim, damage, liability or expense paid or incurred, and any
amount received, by any person controlling any Underwriter within the meaning of
Section 15 of the 1933 Act which has been paid or incurred or received by reason
of such control relationship shall be deemed to have been paid or incurred or
received by such Underwriter. Notwithstanding anything to the contrary contained
in this Agreement, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution or
indemnification under this Section 8 from any person who was not guilty of such
fraudulent misrepresentation.
9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, or if such indemnification provided for
in Section 8 hereof is insufficient in respect of any losses, liabilities,
claims or damages referred to therein, the Company and Bank of America on the
one hand and the Underwriters on the other shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity incurred by the Company and the Underwriters, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and Bank of America on the one hand and each Underwriter on the
other from the offering of the Underwritten Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
Bank of America on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable consideration appropriate under the
circumstances). The relative benefits received by the Company and Bank of
America on the one hand and any Underwriter on the other shall be deemed to be
in the same proportion as the total proceeds from the issuance and sale of the
Underwritten Certificates under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts, commissions
and other fees received by such Underwriter. The relative fault of the Company
and Bank of America on the one hand and of the Underwriters on the other 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 relates to information supplied by the Company, Bank of America
or by the Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation, and
provided, further, that in no event shall any Underwriter be obligated to
contribute more than its share of underwriting discounts, commissions and other
fees pertaining to the Underwritten Certificates less any damages otherwise paid
by such Underwriter with respect to such loss, liability, claim, damage or
expense. It is hereby acknowledged that the respective Underwriters' obligations
under this Section 9 shall be several and not joint. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's
directors, shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
(b) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (a) above. The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims or damages referred to in Section 8 or
this Section 9 shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party. In the event that
any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. The remedies provided for in Section 8 and this Section
9 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion of the Underwritten
Certificates set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Underwritten Certificates set forth opposite the names of
all the remaining Underwriters) to purchase the Underwritten Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided that no Underwriter shall be obligated under this Section 10 to
purchase Certificates of a Class that it is not otherwise obligated to purchase
under this Agreement; provided, however, that in the event that the amount of
Underwritten Certificates that the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate principal amount of
Underwritten Certificates set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company, except as provided in Section 11 or Section 12. In the event of
a default by any Underwriter as set forth in this Section 10, the Closing Date
for the Underwritten Certificates shall be postponed for such period, not
exceeding ten business days, as you shall determine in order that the required
changes in the Registration Statement and the Prospectus Supplement or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9, and shall survive delivery of the
Underwritten Certificates to the Underwriters.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of Bank of
America whether or not arising in the ordinary course of business, or (ii) if
there has occurred any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change in the financial markets the effect of which is
such as to make it, in the judgment of any Underwriter, impracticable or
inadvisable to market the Underwritten Certificates or to enforce contracts for
the sale of the Underwritten Certificates, or (iii) if trading in any securities
of the Company or of Bank of America has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or on the Nasdaq National
Market or the over-the-counter market has been suspended or limited or subject
to a material disruption, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either federal or New York authorities
or any material disruption in commercial banking or securities settlement or
clearance services in the United States has occurred.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
as provided in Section 11 or Section 12(c).
(c) The provisions of Section 5(e) regarding the payment of costs
and expenses and the provisions of Sections 7, 8 and 9 hereof shall survive the
termination of this Agreement.
13. 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. Notice to BAS shall be directed to it
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 30th floor, NC1-002-29-01, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and with a copy to [______________], [___________________],[_________________];
notice to Bank of America shall be directed to it at Bank of America, N.A., at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 30th floor, NC1-002-29-01, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; notice to
[_______________] shall be directed to it at [_______________]; and notice to
the Company shall be directed to it at Banc of America Commercial Mortgage Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 30th floor, NC1-002-29-01, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or, in each case,
such other address as may hereafter be furnished by the Underwriters, the
Mortgage Loan Seller or the Company to the other such parties in writing.
14. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters, the Company and the Mortgage Loan Seller
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Mortgage Loan
Seller and their respective successors and the controlling persons and officers
and directors referred to in Sections 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Mortgage Loan Seller
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Certificates
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
15. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New without regard to
principles of conflicts of law other than Section 5-1401 of the New York General
Obligations Law which shall govern. This Agreement may be executed in any number
of counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, Bank of America and the several Underwriters.
Very truly yours,
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: ____________________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: ____________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC
By: ____________________________________
Name:
Title:
[___________________________________]
By: ____________________________________
Name:
Title:
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
SCHEDULE I
Underwriting Agreement dated [___________], 20[__]:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-[______] filed by the Company on Form S-3 and
declared effective on [____________], 2008. The term "Base Prospectus" refers
to the form of prospectus in the Registration Statement or such later form as
most recently filed by the Company pursuant to Rule 424(b) under the Securities
Act of 1933, as amended. The term "Prospectus Supplement" refers to the
supplement dated [____________], 20[__] to the Base Prospectus, relating to the
mortgage pass-through certificates being sold pursuant to the Underwriting
Agreement (the "Underwritten Certificates").
Mortgage Pool:
[___] conventional, commercial and multifamily mortgage loans, having an
aggregate principal balance, after giving effect to payments of principal due on
or before the Cut-off Date of $[_____________] as described in the Prospectus
Supplement, and otherwise complying in all material respects with the
description thereof set forth in the Prospectus Supplement.
Title, Purchase Price and Description of Underwritten Certificates:
Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates Series 20[__]-[_] Class A [, Class X] and Class B Certificates.
Closing Date
Aggregate
Certificate
Principal
Balance or Pass-Through Purchase Price
Designation Notional Amount Rate Rating(1) Percentage
----------- --------------- ------------ --------- --------------
Class A $ [___________] [______]% [___/___] [___]%
[Class X $ [___________] Variable% [___/___] [___]%]
Class B $ [___________] [______]% [___/___] [___]%
----------
(1) By each of [_____________________].
Credit Support and Other Terms and Conditions of the Underwritten
Certificates: As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on
[___________], 20[__] at the offices of [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, Charlotte, North Carolina]; except that delivery of the Underwritten
Certificates shall be made through the facilities of The Depository Trust
Company.
Initial Public Offering Price: The Underwritten Certificates will be
offered to the public in negotiated transactions or otherwise at varying
prices to be determined at the time of sale.
SCHEDULE II
Underwriting Agreement dated [___________], 20[__]. Approximate Aggregate
Principal or Notional Amount of Certificates to Underwriters Class to be
purchased by:
Banc of America Securities LLC [___________________]
Class A $[___________] $[__________]
[Class X $[___________] $[__________]]
Class B $[___________] $[__________]
SCHEDULE III
ADDITIONAL INFORMATION