EXHIBIT 1.1
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
UNDERWRITING AGREEMENT
New York, New York
_________________, 200__
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Banc of America Commercial Mortgage Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the [respective] principal [and/or notional] amount[s] of
its securities identified in Schedule I hereto (the "Securities"), to be issued
under a pooling and servicing agreement (the "Pooling Agreement") to be dated as
of ________________, 200___, among the Company as depositor,
_____________________ as master servicer (the "Master Servicer"),
______________________ as special servicer (the "Special Servicer"),
___________________ as REMIC administrator (the "REMIC Administrator") and
___________________ as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, each shall
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Securities. Such registration statement, as amended to the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 under
the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised the Representatives of all
further information (financial and other) with respect to the Company and
the Securities to be set forth therein. Such registration statement,
including the exhibits thereto, as
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amended to the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears
in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter called
the "Final Prospectus." Any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus or (B) any Current Report (as defined in Section 5(b)
below), or in any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement or the Final Prospectus (or any
amendment thereof or supplement thereto).
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(c) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Delaware and has corporate
and other power and authority to own its properties and conduct its
business, as now conducted by it, and to enter into and perform its
obligations under this Agreement and the Pooling Agreement.
(d) The Company is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the Basic
Prospectus or for any additional information or (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement.
(e) This Agreement has been duly authorized, executed and delivered
by the Company, and the Pooling Agreement, when delivered by the Company,
will have been duly authorized, executed and delivered by the Company, and
will constitute a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, as
to the enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership and similar laws affecting
creditors' rights generally and to general principles of equity
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the [applicable] purchase price set
forth in Schedule I hereto, the principal [or notional] amount of [each class
of] the Securities set forth opposite such Underwriter's name in Schedule II
hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the [aggregate] purchase
price thereof in the manner set forth in Schedule I hereto. If Schedule I
indicates that the Securities are to be issued in book-entry form, delivery of
the Securities shall be made through the facilities of the depository or
depositories set forth on Schedule I. Alternatively, certificates for the
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in [New York, New York], not later
than [1:00 p.m., New York City] time, on the business day prior to the Closing
Date.
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4. Representations, Warranties and Agreements of the Underwriters. Each
Underwriter represents and warrants to, and agrees with, the Company that:
(a) It proposes to offer the Securities for sale to the public as
set forth in the Final Prospectus, and all offers and sales of the
Securities made by it shall be so made in compliance with all applicable
laws and regulations.
(b) If any of the Securities to be acquired by it constitute
"residual interests" in a "real estate mortgage investment conduit" (a
"REMIC") as those terms are defined, respectively, in Sections 860G and
860D of the Internal Revenue Code of 1986 (the "Code"; and such
Securities, "Residual Securities"), it will deliver on or before the
Closing Date, in connection with such acquisition, a transfer affidavit
and agreement, substantially in the form required pursuant to Section
______ of the Pooling Agreement, upon which the Company and the Trustee
may rely. In addition, it shall pay directly or reimburse the Company upon
demand for: (i) any and all taxes (including, without limitation,
penalties and interest) owed or asserted to be owed by the Company as a
result of a claim by the Internal Revenue Service that the transfer of any
Residual Securities to such Underwriter hereunder or any transfer thereof
by such Underwriter may be disregarded for federal tax purposes and (ii)
any and all losses, claims, damages and liabilities, including, without
limitation, attorney's fees and expenses, arising out of any failure of
such Underwriter to make payment or reimbursement in connection with any
such assertion as required in clause (i) above. Furthermore, it
acknowledges that on the Closing Date, immediately after the transactions
described herein, it will be the owner of the Residual Securities, if any,
acquired by it for federal tax purposes, and it shall not assert in any
proceeding that the transfer of such Residual Securities from the Company
to such Underwriter should be disregarded for any purpose.
5. Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished the Representatives a copy for their review
prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
mailed to the Commission for filing pursuant to Rule 424 by first class
certified or registered mail or by overnight courier and will cause the
Final Prospectus to be filed with the Commission pursuant to said Rule.
The Company will advise the Representatives promptly (i) when the Final
Prospectus shall have been mailed to the Commission for filing pursuant to
Rule 424, (ii) when any amendment to the Registration Statement relating
to the Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information
relating to the Securities, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
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or the institution or threatening of any proceeding for that purpose and
(v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order described in clause (iv) of the preceding sentence
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will cause or, if appropriate, will have caused any
Computational Materials and ABS Term Sheets (each as defined in Section 10
below) with respect to the Securities which are delivered by the
Underwriters to the Company pursuant to or as contemplated by Section 10
to be filed with the Commission on a Current Report on Form 8-K (the
"Current Report") pursuant to Rule 13a-11 under the Exchange Act not later
than, in each such case, the business day immediately following [the
earlier of (i)] the day on which such Computational Materials are
delivered to counsel for the Company by the Underwriters prior to 10:30
a.m., New York City time, [and (ii) the date hereof,] and will promptly
advise the Underwriters when each such Current Report has been so filed.
Each such Current Report shall be incorporated by reference in the Final
Prospectus and the Registration Statement. Notwithstanding the two
preceding sentences, the Company shall have no obligation to file
materials provided by the Underwriters pursuant to or as contemplated by
Section 10 which, in the reasonable determination of the Company after
making reasonable efforts to consult with the Underwriters, are not
required to be filed pursuant to the No-Action Letters (as defined in
Section 10 below), or which contain erroneous information or contain any
untrue statement of a material fact or, which, when read in conjunction
with the Final Prospectus, omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
it being understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any
Computational Materials or ABS Term Sheets provided by the Underwriters to
the Company pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause any required
post-effective amendment to the Registration Statement containing such
amendment to be made effective as soon as possible; provided, however,
that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials and/or ABS Term
Sheets incorporated by reference in the Final Prospectus other than any
amendments or supplements of such Computational
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Materials and/or ABS Term Sheets that are furnished to the Company
pursuant to Section 10(d) hereof which the Company determines to file in
accordance therewith.
[(d) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.]
(e) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, executed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus relating to the Securities by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto (other than exhibits to a Current Report) as the
Representatives may reasonably request. The Company will pay the expenses
of printing all documents relating to the initial offering of the
Securities, provided that any additional expenses incurred in connection
with the requirement of delivery of a market-making prospectus will be
borne by ________________________________.
(f) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
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(b) The Company shall have furnished to the Representatives the
opinion of [Cadwalader, Wickersham & Taft], counsel for the Company and
the Underwriters, dated the Closing Date, to the effect of paragraphs
(iii), (vi), (vii), (ix), (xi), (xiv), (xv), (xvi) and (xvii) below, and
the opinion of [Robert W. Long, Jr.], special counsel to the Company,
dated the Closing Date, to the effect of paragraphs (i), (ii), (iv), (v),
(viii), (x), (xii) and (xiii) below:
(i) the Company is a duly incorporated and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus;
(ii) the Company has no subsidiaries and is not required to be
qualified or licensed to do business as a foreign corporation in any
jurisdiction;
(iii) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iv) the Pooling Agreement has been duly authorized, executed
and delivered by the Company;
(v) the Securities have been duly authorized by the Company;
(vi) upon due authorization, execution and delivery by the
parties thereto, the Pooling Agreement will constitute a legal,
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability
may be limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors generally, and
(B) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law;
(vii) the Securities, when duly and validly executed,
authenticated and delivered in accordance with the Pooling Agreement
and paid for in accordance with this Agreement, will be entitled to
the benefits of the Pooling Agreement;
(viii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required;
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(ix) the Registration Statement has become effective under the
Act; to the best knowledge of such counsel no stop order suspending
the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or threatened;
the Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto (other than the financial statements
and other financial and statistical information contained therein or
incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to
believe that the Registration Statement or any amendment thereof at
the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(x) this Agreement has been duly authorized, executed and
delivered by the Company;
(xi) upon due authorization, execution and delivery by the
parties hereto, this Agreement will constitute a legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (C) public policy considerations underlying
the securities laws, to the extent that such public policy
considerations limit the enforceability of any of the provisions of
this Agreement which purport to provide indemnification from
securities law liabilities;
(xii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(xiii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result
in a breach of, or constitute a default under the certificate of
incorporation or by-laws of the Company or, to the best knowledge of
such counsel, the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company is a party
or by which it is
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bound, or any order or regulation known to such counsel to be
applicable to the Company of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company;
(xiv) the Pooling Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended;
(xv) neither the Company nor the Trust Fund is required to be
registered under the Investment Company Act of 1940, as amended;
(xvi) the statements in the Final Prospectus under the
headings "Certain Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of State
of New York or federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences
of investment in the Certificates, are correct in all material
respects with respect to those consequences or matters that are
discussed therein; and
(xvii) assuming compliance with the provisions of the Pooling
Agreement, for federal income tax purposes, each of REMIC I and
REMIC II [as such terms are defined in the Pooling Agreement] will
qualify as a REMIC within the meaning of Sections 860A through 860G
(the "REMIC Provisions") of the Code, and (i)
_______________________ will be the "regular interests" in REMIC I,
(ii) the ______________________ will be the sole class of "residual
interests" in REMIC I, (iii) the __________________________ will
evidence "regular interests" in REMIC II and (iv) the __________
____________ will be the sole class of "residual interests" in REMIC
II, each within the meaning of the REMIC Provisions in effect on the
date hereof.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the United States or the laws of the State of Delaware
other than its general corporation law, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriters; and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials.
(c) [The Representatives shall have received copies, addressed to
them or on which they are entitled to rely, of opinions of counsel
furnished to the rating agencies rating the Securities as set forth on
Schedule I hereto addressing the characterization of the transfer by the
Company to the Trustee of its right, title and interest in and to the
mortgage loans underlying the Securities (the "Mortgage Loans") in
accordance with the Pooling Agreement, and the sale of the Securities to
the Underwriters hereunder, as a sale of the interests in the Mortgage
Loan evidenced by the Securities rather than a financing or,
alternatively, an opinion with respect to (i) the Trustee's having as a
perfected first priority security interest in the Mortgage Loans and (ii)
the non-
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consolidation of the Company and ______________ in the event of a
conservatorship or receivership of ________________.]
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or
President and Chief Executive Officer or an Executive Vice President or
Treasurer and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement (excluding
any Current Reports and any other documents incorporated by reference
therein), the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is
given in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) On the date hereof, ______________________ and/or any other firm
of certified independent public accountants acceptable to the
Representatives shall have furnished to the Representatives a letter,
dated the date hereof, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder, and stating in effect that
using the assumptions and methodology used by the Company, all of which
shall be described in such letter, they have recalculated such numbers and
percentages set forth in the Final Prospectus as the Representatives may
reasonably request and as are agreed to by ______________________,
compared the results of their calculations to the corresponding items in
the Final Prospectus, and found each such number and percentage set forth
in the Final Prospectus to be in agreement with the results of such
calculations. To the extent historical financial information with respect
to the Company and/or historical financial, delinquency or related
information with respect to one or more servicers is included in the Final
Prospectus, such letter or letters shall also relate to such information.
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(f) The Securities shall have received the rating or ratings from
the rating agency or rating agencies set forth in Schedule I hereto.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates, opinions and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
omission or alleged omission (in the case of any Computational Materials or ABS
Term Sheets in respect of which the Company agrees to indemnify any Underwriter,
as set forth below, when such are read in conjunction with the Final Prospectus)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein (A) in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically for use in
connection with the
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preparation thereof or (B) in any Current Report or any amendment or supplement
thereof, except to the extent that any untrue statement or alleged untrue
statement therein results (or is alleged to have resulted) directly from an
error (a "Collateral Error") in the information concerning the Mortgage Loans
furnished by the Company to any Underwriter in writing or by electronic
transmission that was used in the preparation of any Computational Materials or
ABS Term Sheets included in such Current Report (or amendment or supplement
thereof), (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented), and (iii) such
indemnity with respect to any Collateral Error shall not inure to the benefit of
any Underwriter (or any person controlling any Underwriter) from whom the person
asserting any loss, claim, damage or liability received any Computational
Materials or ABS Term Sheets that were prepared on the basis of such Collateral
Error, if, prior to the time of confirmation of the sale of the Securities to
such person, the Company notified such Underwriter in writing of the Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any such case, a "Corrected Collateral
Error"), and such Underwriter failed to notify such person thereof or to deliver
such person corrected Computational Materials and/or ABS Term Sheets, as
applicable. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to (A) written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for use in
the preparation of the documents referred to in the foregoing indemnity, or (B)
any Computational Materials or ABS Term Sheets furnished to the Company by any
Underwriter pursuant to or as contemplated by Section 10 and incorporated by
reference in the Registration Statement or the Final Prospectus (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Collateral Error,
other than a Corrected Collateral Error). This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and under the heading "Underwriting" or "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity (other than
any Computational Materials and/or ABS Term Sheets furnished to the Company by
any Underwriter), and you, as the Representatives, confirm that such statements
are correct.
-12-
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a) and the Company in the case of subparagraph (b), representing the
indemnified parties under subparagraph (a) or (b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) or (b) of this Section 8
is due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriters on the grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which do not arise out of or are not based
upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets, in such proportion so that the
Underwriters are responsible for that portion represented by the
-13-
percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Securities specified in Schedule I
hereto and the Company is responsible for the balance; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities)
be responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Securities purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which arise out of or are based upon any
untrue statement or omission of a material fact in any Computational
Materials or ABS Term Sheets, in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
in such Computational Materials or ABS Term Sheets results from
information prepared by the Company on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
Notwithstanding anything to the contrary in this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting
-14-
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Computational Materials and ABS Term Sheets. (a) Not later than 10:30
a.m., New York City time, on the date hereof, the Underwriters shall deliver to
the Company five complete copies of all materials provided by the Underwriters
to prospective investors in the Securities which constitute either (i)
"Computational Materials" within the meaning of 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 (together, the "Kidder Letters") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and together with the Kidder Letters,
the "No-Action Letters"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters and, in the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, such Collateral Term Sheets have not previously been delivered to the
Company as contemplated by Section 10(b)(i) below. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials to
counsel for the Company on behalf of the Company at the address specified in
Section 13 hereof and one copy of such materials to the Company.
(b) The Underwriters represent and warrant to and agree with the
Company, as of the date hereof and as of the Closing Date, that:
[(i) if the Underwriters have provided any Collateral Term Sheets to
potential investors in the Securities prior to the date hereof and if the
filing of such materials with the Commission is a condition of the relief
granted in the PSA Letter, then in each such case the Underwriters
delivered four copies of such materials to counsel for the Company on
behalf of the Company at the address specified in Section 13 hereof and
one copy of such materials to the Company no later than 10:30 a.m., New
York City time, on the first business day following the date on which such
materials were initially provided to a potential investor;]
-15-
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant
to Section 10(a) or as contemplated in Section 10(b)(i) constitute all of
the materials relating to the Securities furnished by the Underwriters
(whether in written, electronic or other format) to prospective investors
in the Securities prior to the date hereof, [except for any Preliminary
Final Prospectus and any Computational Materials and ABS Term sheets which
are not required to be filed with the Commission in accordance with the
No-Action Letters,] and all Computational Materials and ABS Term Sheets
provided to potential investors in the Securities comply with the
requirements of the No-Action Letters;
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Securities referred to in Section
10(b)(ii) were last furnished to each prospective investor, on the date of
delivery thereof to the Company pursuant to or as contemplated by this
Section 10 and on the Closing Date, such Computational Materials and/or
ABS Term Sheets did not and will not include any untrue statement of a
material fact, or, when read in conjunction with the Final Prospectus,
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Securities were furnished to a prospective investor and on
the date hereof, the Underwriters possessed, and on the date of delivery
of such materials to the Company pursuant to or as contemplated by this
Section 10 and on the Closing Date, the Underwriters will possess, the
capability, knowledge, expertise, resources and systems of internal
control necessary to ensure that such Computational Materials and/or ABS
Term Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Computational Materials and ABS Term Sheets with respect to
the Securities furnished to potential investors contained and will contain
a legend, prominently displayed on the first page thereof, to the effect
that the Company has not prepared, reviewed or participated in the
preparation of such Computational Materials or ABS Term Sheets, is not
responsible for the accuracy thereof and has not authorized the
dissemination thereof;
[(vi) all Collateral Term Sheets with respect to the Securities
furnished to potential investors contained and will contain a legend,
prominently displayed on the first page thereof, indicating that the
information contained therein will be superseded by the description of the
Mortgage Loans contained in the Final Prospectus and, except in the case
of the initial Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets;] and
-16-
(vii) on and after the date hereof, the Underwriters shall not
deliver or authorize the delivery of any Computational Materials, ABS Term
Sheets or other materials relating to the Securities (whether in written,
electronic or other format) to any potential investor unless such
potential investor has received a Final Prospectus prior to or at the same
time as the delivery of such Computational Materials, ABS Term Sheets or
other materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Securities included or will include any untrue statement
resulting directly from any Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from the Company of notice of such Corrected Collateral Error or materials
superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Securities to any prospective
investor, and agree that any such Computational Materials and/or ABS Term Sheets
furnished to prospective investors shall include a disclaimer in the form set
forth in paragraph (b)(v) above. The Underwriters agree that they will not
represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Securities were prepared or disseminated on
behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials or ABS Term Sheets provided by the
Underwriters pursuant to or as contemplated by this Section 10 or the omission
to state therein a material fact required, when considered in conjunction with
the Final Prospectus, to be stated therein or necessary to make the statements
therein, when read in conjunction with the Final Prospectus, not misleading, or
if it shall be necessary to amend or supplement any Current Report to comply
with the Act or the rules thereunder, the Underwriters, at their expense,
promptly will prepare and furnish to the Company for filing with the Commission
an amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. The Underwriters represent and
warrant to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Final Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Company shall have
no obligation to file such amendment or supplement if the Company determines
that (i) such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the Final Prospectus, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading (it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the Underwriters
to the Company pursuant to this paragraph (d)) or (ii) such filing is not
required under the Act.
-17-
(e) The Underwriters (at their own expense) further agree to provide
to the Company any accountants' letters obtained relating to the Computational
Materials and/or ABS Term Sheets, which accountants' letters shall be addressed
to the Company or shall state that the Company may rely thereon; provided that
the Underwriters shall have no obligation to procure such letter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or
___________________ authorities or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representatives, impracticable to market the Securities.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof and this Section 12 shall survive the termination or cancellation
of this Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: ____________________________________________, Attn:
__________________________; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 100 North Tryon Street,
Charlotte, North Carolina 28255, Attn: __________________, with a copy to:
____________________________, Attn: _______________________.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
-18-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By:_____________________________________
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
BANC OF AMERICA SECURITIES LLC
[NAMES OF ADDITIONAL REPRESENTATIVES]
By: BANC OF AMERICA SECURITIES LLC
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
-19-
SCHEDULE I
Underwriting Agreement dated ________, 200_
Registration Statement No. 33-_______
Representatives:
Banc of America Securities LLC
[Names of Additional Representatives]
Title, Purchase Price and Description of Securities:
Title: Banc of America Commercial Mortgage Inc. Mortgage Pass-Through
Certificates, Series 200_-_
===================================================
Principal Purchase
Class Amount Price Rating
----- ------ ----- ------
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---------------------------------------------------
---------------------------------------------------
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===================================================
Closing Time, Date and Location:
10:00 A.M. on ___________, 200_ at the offices of _______
______________________________.
SCHEDULE II
Principal Purchase
Underwriter Class Amount Price
----------- ----- ------ -----