EXHIBIT 1
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
COMMERCIAL MORTGAGE PASS- THROUGH CERTIFICATES
SERIES 2006-5
UNDERWRITING AGREEMENT
September 28, 2006
BANC OF AMERICA SECURITIES LLC
214 North Tryon Street
NC1-027-22-03
Charlotte, North Carolina 28255
BEAR, STEARNS & CO. INC.
383 Madison Avenue
New York, New York 10179
BARCLAYS CAPITAL INC.
200 Park Avenue
New York, New York 10166
SUNTRUST CAPITAL MARKETS, INC.
303 Peachtree Street, NE
Atlanta, Georgia 30308
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
GREENWICH CAPITAL MARKETS, INC.
600 Steamboat Road
Greenwich, Connecticut 06830
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 2006-5 (the "Certificates"), in 27 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"), Bear, Stearns & Co.
Inc., ("Bear
Stearns"), Barclays Capital Inc. ("Barclays"), SunTrust Capital
Markets, Inc.
("SunTrust"), Morgan Stanley & Co. Incorporated ("Morgan
Stanley") and Greenwich
Capital Markets, Inc. ("RBS Greenwich") (each of BAS, Bear Stearns,
Barclays,
SunTrust, Morgan Stanley and RBS Greenwich 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 183 mortgage loans having an approximate
aggregate
principal balance of $2,243,271,167 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 multifamily and
commercial
properties (the "Mortgaged Properties"). The Certificates will be
issued on
October 12, 2006 (the "Closing Date") pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement"), dated as of
October 1, 2006,
among the Company, Bank of America, National Association, as master
servicer
(the "Master Servicer"), Midland Loan Services, Inc., as special
servicer (the
"Special Servicer"), and LaSalle Bank, National Association, 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 (i)
Bank of America, National Association ("Bank of America") pursuant
to a mortgage
loan purchase and sale agreement, dated as of October 1, 2006 (the
"Bank of
America Purchase Agreement"), between Bank of America and the
Company, (ii)
Barclays Capital Real Estate Inc. ("BCREI") pursuant to a mortgage
loan purchase
and sale agreement, dated as of October 1, 2006 (the "BCREI
Purchase
Agreement"), between BCREI and the Company, (iii) Bear Stearns
Commercial
Mortgage, Inc. ("BSCMI") pursuant to a mortgage loan purchase and
sale
agreement, dated as of October 1, 2006 (the "BSCMI Purchase
Agreement") between
BSCMI and the Company, (iv) SunTrust Bank ("SunTrust Bank")
pursuant to a
mortgage loan purchase and sale agreement, dated as of October 1,
2006 (the
"SunTrust Bank Purchase Agreement"), between SunTrust Bank and the
Company and
(v) Citigroup Global Markets Realty Corp. ("CGMRC" and,
collectively with Bank
of America, BCREI, BSCMI, and SunTrust Bank, the "Mortgage Loan
Sellers")
pursuant to a mortgage loan purchase and sale agreement, dated as
of October 1,
2006 (the "CGMRC Purchase Agreement" and, collectively with the
Bank of America
Purchase Agreement, the BCREI Purchase Agreement, the BSCMI
Purchase Agreement,
and the SunTrust Bank Purchase Agreement, the "Mortgage Loan
Purchase
Agreements"), between CGMRC and the Company. This Agreement, the
Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements are
sometimes
collectively referred to herein as the "Transaction Agreements."
Two 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
2:45 p.m. on
September 28, 2006 (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 September 25, 2006 (the cover page of
which is
attached hereto as Annex A) to the Basic Prospectus (defined below)
and the
Basic Prospectus (collectively with such Free Writing Prospectus,
the
"Transaction FWP"), (ii) a Term Sheet dated September 2006 (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.
333-130755)
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 September 28,
2006
(the
"Basic Prospectus"), a supplement dated September 28, 2006 (the
"Prospectus Supplement") to the Basic 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. 333-130755),
including all exhibits thereto, is referred to herein as the
"Registration Statement"; and the Basic 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 Ernst & Young LLP (a "hard copy" of
which
Master Tape was produced on behalf of each 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 the 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 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 1933 Act)
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 Agreements 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 each
Mortgage Loan Purchase Agreement; each of this Agreement, the
Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements 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 Agreements 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 Agreements 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
Agreements
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 Agreements. None of the issuance and sale
of
the
Underwritten Certificates, the execution and delivery by the
Company
of
this Agreement, the Mortgage Loan Purchase Agreements 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 Agreements 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 Agreements, (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 Agreements 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 each Mortgage Loan Seller in the related 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 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:
(a) 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 and
provided that
the
underlying data regarding the Mortgage Loans, and the related
Mortgagors 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.
(b) In relation to each Member State of the European Economic
Area
which has implemented the Prospectus Directive (each, a "Relevant
Member
State"), with effect from and including the date on which the
Prospectus
Directive is implemented in that Relevant Member State (the
"Relevant
Implementation Date") it has not made and will not make an offer of
the
Underwritten Certificates to the public in that Relevant Member
State,
except that it may, with effect from and including the Relevant
Implementation Date, make an offer of the Underwritten Certificates
to
the
public in that Relevant Member State prior to the publication of
a
prospectus in relation to the Underwritten Certificates which has
been
approved by the competent authority in that Relevant Member State
or,
where appropriate, approved in another Relevant Member State and
notified
to
the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with
effect
from
and including the Relevant Implementation Date, make an offer
of
Underwritten Certificates to the public in that Relevant Member
State at
any
time:
(i) at any time to legal entities which are authorized or
regulated to operate in the financial markets or, if not so
authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(ii) at any time to any legal entity which has two or more of
(1)
an
average of at least 250 employees during the last financial year;
(2)
a total
balance sheet of more than (euro)43,000,000 and (3) an annual
net
turnover of more than (euro)50,000,000, as shown in its last annual
or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of
the
Prospectus Directive.
For the purposes of this representation, the expression an
"offer
of the Underwritten Certificates to the public" in relation to
any
Underwritten Certificates in any Relevant Member State means
the
communication in any form and by any means of sufficient
information on
the terms of the offer and the Underwritten Certificates to be
offered
so as to enable an
investor to decide to purchase or subscribe the
Underwritten Certificates, as the same may be varied in that
Member
State by any measure implementing the Prospectus Directive in
that
Member State, and the expression "Prospectus Directive" means
Directive
2003/71/EC and includes any relevant implementing measure in
each
Relevant Member State.
(c) With respect to the United Kingdom:
(i) it has only communicated or caused to be communicated and
will
only
communicate or cause to be communicated an invitation or
inducement
to
engage in investment activity (within the meaning of Section 21 of
the
Financial Services and Markets Act) received by it in connection
with the
issue or sale of the Underwritten Certificates in circumstances in
which
Section 21(1) of the Financial Services and Markets Act does not
apply to
the
Company; and
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act with respect
to
anything done by it in relation to the Underwritten Certificates
in, from
or
otherwise involving the United Kingdom.
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 New York, New York, 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 Basic 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 Kidder, Peabody Acceptance
Corporation I, Kidder, Peabody & Co. Incorporated, and
Kidder
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, 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 any Mortgage Loan Seller to the Underwriter,
which information was not corrected by Corrective Information
subsequently supplied by the Company or any 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(c)(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 this Section 4, 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
