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 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).
(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.
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(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.
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.
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(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 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.
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(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 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.]
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(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.
(b) The Company shall have furnished to the Representatives
the opinion of [Cadwalader, Wickersham & Taft LLP], 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;
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(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;
(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
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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 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
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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-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
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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.
(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
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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 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
-11-
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.
(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
-12-
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 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
-13-
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 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-
-14-
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;]
(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;
-15-
(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
(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.
-16-
(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.
(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
-17-
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.
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.
-18-
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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Closing Time, Date and Location:
10:00 A.M. on ______________, 200_ at the offices of _________________.
SCHEDULE II
Principal Purchase
Underwriter Class Amount Price
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