EXHIBIT 1
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
COMMERCIAL MORTGAGE PASS- THROUGH CERTIFICATES
SERIES 2008-LS1
UNDERWRITING AGREEMENT
March 5, 2008
BANC OF AMERICA SECURITIES LLC
214 North Tryon Street
NC1-027-22-03
Charlotte, North Carolina 28255
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York 10019
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 2008-LS1 (the "Certificates"), in 30 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 Lehman
Brothers Inc.
("Lehman") (each of BAS and Lehman individually an "Underwriter"
and together,
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 238 mortgage loans having an approximate aggregate
principal balance
of $2,345,024,732 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, manufactured
housing and
commercial properties (the "Mortgaged Properties"). The
Certificates will be
issued on March 18, 2008 (the "Closing Date") pursuant to a pooling
and
servicing agreement (the "Pooling and Servicing Agreement"), dated
as of March
1, 2008, among the Company, Bank of America, National Association,
as master
servicer (the "Master Servicer"), LNR Partners, Inc., as special
servicer (the
"Special Servicer"), Wells Fargo Bank, N.A., as trustee (in such
capacity, the
"Trustee") and LaSalle Bank National Association, as certificate
administrator
(in such capacity, the "Certificate Administrator") and REMIC
administrator (in
such capacity the "REMIC Administrator"). The Mortgage Loans will
be acquired by
the Company from Bank of America, National Association ("Bank of
America")
pursuant to a mortgage loan purchase and sale agreement, dated as
of March 1,
2008 (the "Bank of America Purchase Agreement" or 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." 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, on or before approximately 2:45 p.m.
on March 5,
2008 (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 February 25, 2008 (the cover page of which is
attached hereto
as Annex A) to the Base Prospectus (defined below) and the Base
Prospectus
(collectively with such Free Writing Prospectus, the "Transaction
FWP"), (ii) a
Term Sheet dated as of February 2008 (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 March 5, 2008
(the
"Base
Prospectus"), a supplement dated March 5, 2008 (the "March 5th
Prospectus
Supplement"), as supplemented by the Prospectus Supplement,
dated as
of March 14, 2008 (the "March 14th Prospectus Supplement"; and,
together
with the March 5th Prospectus Supplement, the "Prospectus
Supplement") to the Base Prospectus, relating to the
Underwritten
Certificates and the method of distribution thereof, and has
previously
advised
you of all further information (financial and other) with
respect
to the
Underwritten Certificates and the Mortgage Pool to be set forth
therein.
Such registration statement (No. 333-130755), including all
exhibits
thereto, is referred to herein as the "Registration Statement";
and the
Base Prospectus and the Prospectus Supplement, together with
any
amendment thereof or
supplement thereto authorized by the Company prior to
the
Closing Date for use in connection with the offering of the
Underwritten Certificates, are hereinafter referred to as the
"Prospectus". If so stated in the Prospectus Supplement, the
Company will
file with
the Commission within fifteen days of the issuance of the
Underwritten Certificates a report on Form 8-K ("8-K") setting
forth
specific
information concerning the Mortgage Pool and the Underwritten
Certificates to the extent that such information is not set forth
in the
Prospectus
Supplement. As used herein, "Pool Information" means the
mortgage
pool information reflected in the Master Tape and the
Prospectus
Supplement. The "Master Tape" shall mean the compilation of
information
and data
regarding the Mortgage Loans covered by the letter rendered by
Ernst
& Young LLP (a "hard copy" of which Master Tape was produced
on
behalf of
the Mortgage Loan Seller) described in Section 6(h)(2) in this
Agreement.
(b) As of the date hereof, as of the date on which the
Prospectus
Supplement
is first filed pursuant to Rule 424 under the 1933 Act, as of
the date
on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which
any
supplement
to the Prospectus Supplement is filed with the Commission, and
as of the
Closing Date, (i) the Registration Statement as of its
effective
date or
deemed effective date pursuant to Rule 430B under the 1933 Act,
as
amended as
of any such time, and the Prospectus, as amended or
supplemented as of any such time, complies and will comply in all
material
respects
with the applicable requirements of the 1933 Act and the rules
and
regulations thereunder, (ii) the Registration Statement, as amended
as
of any
such time, does not include and will not include any untrue
statement
of a material fact and does not omit and will not omit to state
any
material fact required to be stated therein or necessary in order
to
make the
statements therein not misleading, (iii) the Prospectus, as
amended or
supplemented as of any such time, does not include and will not
include
any untrue statement of a material fact and does not omit and
will
not omit
to state any material fact necessary in order to make the
statements
therein, in light of the circumstances under which they were
made, not
misleading, and (iv) the Transaction FWP does not include and
will not
include any untrue statement of a material fact and does not
omit
and will
not omit to state any material fact necessary in order to make
the
statements therein, in light of the circumstances under which
they
were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to statements contained in or
omitted
from the
Registration Statement, the Prospectus or the Transaction FWP
or
any
amendment thereof or supplement thereto made in reliance upon and
in
conformity
with information furnished in writing to the Company by or on
behalf of
any Underwriter specifically for use in the Registration
Statement,
the Prospectus or the Transaction FWP (such information being
identified
in Section 8(b)).
(c) The Time of Sale Information, at the Time of Sale, did not,
and
at the
Closing Date will not, contain any untrue statement of a
material
fact or
omit to state a material fact necessary in order to make the
statements
therein, in light of the circumstances under which they were
made, not
misleading; provided that the Company makes no representation
and
warranty with respect to (i) any statements or omissions made
in
reliance
upon and in conformity with the Underwriter Information or (ii)
any
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
Agreement and
the Pooling and Servicing Agreement and is conducting its
business
so as to comply in all material aspects with all applicable
statutes,
ordinances, rules and regulations of the jurisdictions in which
it is
conducting business; and the Company is duly qualified as a
foreign
corporation to transact business and is in good standing in
each
jurisdiction in which such qualification is required, whether by
reason of
the
ownership or leasing of property or the conduct of business.
(f) As of the date hereof, as of the date on which the
Prospectus
Supplement
is first filed pursuant to Rule 424 under the 1933 Act, as of
the date
on which, prior to the Closing Date, any amendment to the
Registration Statement
becomes effective, as of the date on which any
supplement
to the Prospectus Supplement is filed with the Commission, and
as of the
Closing Date, there has not and will not have been (i) any
request by
the Commission for any further amendment to the Registration
Statement
or the Prospectus or for any additional information, (ii) any
issuance
by the Commission of any stop order suspending the
effectiveness
of the
Registration Statement or the institution or threat of any
proceeding
for that purpose or (iii) any notification with respect to the
suspension
of the qualification of the Underwritten Certificates for sale
in any
jurisdiction or any initiation or threat of any proceeding for
such
purpose.
(g) On or prior to the Closing Date, the Company will have
entered
into the
Pooling and Servicing Agreement, this Agreement and the
Mortgage
Loan
Purchase Agreement; each of this Agreement, the Pooling and
Servicing
Agreement
and the Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company and each of
this
Agreement,
the Pooling and Servicing Agreement and the Mortgage Loan
Purchase
Agreement constitutes a legal, valid and binding agreement of
the
Company,
enforceable against the Company in accordance with its terms,
except as
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
affecting
the
enforcement of the rights of creditors generally, (ii) general
principles
of equity, whether enforcement is sought in a proceeding in
equity or
at law, and (iii) public policy considerations underlying the
securities
laws, to the extent that such public policy considerations
limit the
enforceability of the provisions of this Agreement or the
Mortgage
Loan Purchase Agreement that purport to provide indemnification
from
securities law liabilities.
(h) As of the Closing Date, the Underwritten Certificates, the
Pooling
and Servicing Agreement and the Mortgage Loan Purchase
Agreement
will
conform in all material respects to the respective descriptions
thereof
contained in the Prospectus. As of the Closing Date, the
Underwritten Certificates will be duly and validly authorized by
the
Company
and, when delivered to the Underwriters in accordance with the
Pooling
and Servicing Agreement against payment therefor as provided
herein,
will be duly and validly issued and outstanding and entitled to
the
benefits of the Pooling and Servicing Agreement.
(i) The Company is not in violation of its certificate of
incorporation or by-laws in any respect and is not in default under
any
agreement,
indenture or instrument the effect of which violation or
default
would be material to the Company or which violation or default
would have
a material adverse affect on the performance of its obligations
under this
Agreement, the Pooling and Servicing Agreement or the Mortgage
Loan
Purchase Agreement. None of the issuance and sale of the
Underwritten
Certificates, the execution and delivery by the Company of this
Agreement,
the
Mortgage Loan Purchase Agreement or the Pooling and Servicing
Agreement,
the consummation by the Company of any of the transactions
herein or
therein contemplated or compliance by the Company with the
provisions
hereof or thereof, did, does or will conflict with or result in
a breach
of any term or provision of the certificate of incorporation or
by-laws of
the Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default (or an event which, with
the
passing of
time or notification, or both, would constitute a default)
under, the
terms of any indenture or other agreement or instrument to
which the
Company is a party or by which it or any material asset is
bound, or
any statute, order or regulation applicable to the Company of
any court,
regulatory body, administrative agency or governmental body
having
jurisdiction over the Company.
(j) There is no action, suit or proceeding against the Company
pending,
or, to the knowledge of the Company, threatened, before any
court,
arbitrator, administrative agency or other tribunal (i)
asserting
the
invalidity of this Agreement, the Pooling and Servicing Agreement,
the
Mortgage
Loan Purchase Agreement or the Underwritten Certificates, (ii)
seeking to
prevent the issuance of the Underwritten Certificates or the
consummation of any of the transactions contemplated by this
Agreement,
the Pooling and
Servicing Agreement or the Mortgage Loan Purchase
Agreement,
(iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or
enforceability of, this Agreement, the Pooling and Servicing
Agreement,
the
Mortgage Loan Purchase Agreement or the Underwritten Certificates
or
(iv)
seeking to affect adversely the federal income tax attributes of
the
Underwritten Certificates as described in the Prospectus and the
Time of
Sale
Information.
(k) There are no contracts, indentures or other documents of a
character
required by the 1933 Act or by the rules and regulations
thereunder
to be described or referred to in the Registration Statement,
the
Prospectus or the Time of Sale Information or to be filed as
exhibits
to the
Registration Statement which have not been so described or
referred
to therein
or so filed or incorporated by reference as exhibits thereto.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the
offering
or sale of the Underwritten Certificates pursuant to this
Agreement,
except such as have been, or as of the Closing Date will have
been,
obtained or such as may otherwise be required under applicable
state
securities
laws in connection with the purchase and offer and sale of the
Underwritten Certificates by the Underwriters, and any recordation
of the
respective
assignments of the Mortgage Loans to the Trustee pursuant to
the
Pooling and Servicing Agreement that have not yet been
completed.
(m) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign
regulatory
agencies or bodies necessary to conduct the business now
operated
by it, and the Company has not received any notice of
proceedings
relating
to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate,
if the
subject of
any unfavorable decision, ruling or finding, would materially
and
adversely affect the condition, financial or otherwise, or the
earnings,
business affairs or business prospects of the Company.
(n) The Company acknowledges and agrees that: (i) the purchase
and
sale of
the Underwritten Certificates pursuant to this Agreement,
including the
determination of the public offering price of the
Underwritten Certificates and any related discounts and
commissions, is an
arm's-length commercial transaction between the Company, on the one
hand,
and the
several Underwriters, on the other hand, and the Company is
capable of
evaluating and understanding and understands and accepts the
terms,
risks and conditions of the transactions contemplated by this
Agreement;
(ii) in connection with each transaction contemplated hereby
and the
process leading to such transaction each Underwriter is and has
been
acting solely as a principal and is not the agent or fiduciary of
the
Company,
or its affiliates, stockholders, creditors or employees or any
other
party; (iii) no Underwriter has assumed or will assume an
advisory
or
fiduciary responsibility in favor of the Company with respect to
any of
the
transactions contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is
currently
advising
the Company on other matters) or any other obligation to the
Company
except the obligations expressly set forth in this Agreement;
(iv)
the
several Underwriters and their respective affiliates may be engaged
in
a broad
range of transactions that involve interests that differ from
those of
the Company and that the several Underwriters have no
obligation
to
disclose any of such interests by virtue of any fiduciary or
advisory
relationship; and (v) the Underwriters have not provided any
legal,
accounting, regulatory or tax advice with respect to the
offering
contemplated hereby and the Company has consulted its own
legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
(o) 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.
(p) 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.
(q) 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").
(r) 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.
(s) 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.
(t) 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.
(u) On the Closing Date, the Mortgage Loans will have been duly
and
validly
assigned and delivered by the Company to the Trustee.
(v) 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.
(w) 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.
(x) 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) to legal entities which are authorized or regulated to
operate
in the
financial markets or, if not so authorized or regulated, whose
corporate
purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of
at least
250 employees during the last financial year; (2) a total
balance
sheet of
more than (euro)43,000,000 and (3) an annual net turnover of
more
than
(euro)50,000,000, as shown in its last annual or consolidated
accounts;
or
(iii) in any other circumstances which do not require the
publication by the 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 Base Prospectus, no
Underwriter shall convey or deliver any written communication to
any
person in connection with the initial offering of the
Underwritten
Certificates, unless such written communication (A) is made in
reliance on Rule 134 under the 1933 Act, (B) constitutes a
prospectus satisfying the requirements of Rule 430B under the
1933
Act or (C) constitutes Time of Sale Information or a Free
Writing
Prospectus that does not constitute Time of Sale Information.
The
Underwriters shall not convey or deliver in connection with the
initial offering of the Certificates any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation
AB
under the 1933 Act ("ABS Informational and Computational
Material"),
in reliance upon Rules 167 and 426 under the 1933 Act or any
materials in reliance on the no-action letter dated May 20,
1994
issued by the Division of Corporation Finance of the Commission
to
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 the
Mortgage Loan Seller to the Underwriter, which information was
not
corrected by Corrective Information subsequently supplied by
the
Company or the Mortgage Loan Seller to such Underwriter within
a
reasonable period of time prior to the Time of Sale.
(c) The Company agrees to file with the Commission the
following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered
by the Underwriter to the Company pursuant to Section 4(b); and
(iii) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person
unaffiliated with the Company or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating
communications.
Notwithstanding the foregoing, the Company shall not be required
to
file (1) Issuer Information contained in any Underwriter Free
Writing Prospectus
or Free Writing Prospectus of any other offering participant other
than the
company, if such information is included or incorporated by
reference in a
prospectus or Free Writing Prospectus previously filed with the
Commission that
relates to the offering of the Certificates, or (2) any Free
Writing Prospectus
or portion thereof that contains a description of the Certificates
or the
offering of the Certificates which does not reflect the final terms
thereof.
(d) Any Free Writing Prospectus required to be filed pursuant
to
Section 4(b) by the Company shall be filed with the Commission not
later than
the date of first use of the Free Writing Prospectus, except
that:
(i) Any Free Writing Prospectus or portion thereof required to
be
filed that
contains only the description of the final terms of the
Certificates shall be filed by the Company with the Commission
within two
days of
the later of the date such final terms have been established
for
all
classes of Certificates and the date of first use;
(ii) Any Free Writing Prospectus or portion thereof required to
be
filed that
contains only ABS Informational and Computational Material
shall be
filed by the Company with the Commission not later than the
later
of the due
date for filing the final Prospectus relating to the
Underwritten Certificates pursuant to Rule 424(b) under the 1933
Act or
two
business days after the first use of such Free Writing
Prospectus;
(iii) Any Free Writing Prospectus required to be filed pursuant
to
Section
4(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
o
