EXHIBIT 1.1
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BANC OF AMERICA 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[__-__]
<PAGE>
BANC OF AMERICA SECURITIES LLC
214 North Tryon Street
NC1-027-22-03
Charlotte, North Carolina 28255
[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 Basic Prospectus
(defined below) and
the Basic 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
<PAGE>
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 the
light of the
circumstances under which they were made, not misleading and have
terminated
their old purchase contracts and entered into new purchase
contracts with
purchasers of the 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 [__________],
20[__]
(the
"Basic Prospectus"), a supplement dated [__________], 20[__]
(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
[_____________________] (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.
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<PAGE>
(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 the 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 the 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 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 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
-3-
<PAGE>
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
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<PAGE>
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.
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<PAGE>
(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.
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<PAGE>
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.
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<PAGE>
(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 424 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 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.
-8-
<PAGE>
(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,
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<PAGE>
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
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<PAGE>
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 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
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<PAGE>
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, 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
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<PAGE>
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
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<PAGE>
(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
a
