EXHIBIT 4.1(b)
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BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Purchaser,
and
BANK OF AMERICA, NATIONAL ASSOCIATION,
Seller,
_________________________________
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
Dated as of [______________], 20[__]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 20[__]-[__]
_________________________________
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is
dated and effective as of [___________], 20[__], between Bank of
America, N.A.,
as seller (the "Seller" or "Bank of America" and Banc of America
Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey
to
the Purchaser, and the Purchaser desires to purchase, subject to
the terms and
conditions set forth below, the conventional, multifamily and
commercial
mortgage loans (the "Mortgage Loans") identified on the schedule
annexed hereto
as Schedule I (the "Mortgage Loan Schedule") except that the Seller
will retain
the master servicing rights (the "Servicing Rights") with regard to
the Mortgage
Loans in its capacity as Master Servicer (as defined below) and
shall enter into
certain Sub-Servicing Agreements with Sub-Servicers, all as
contemplated in the
Pooling and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of the
Mortgage Loans to a trust (the "Trust") created pursuant to the
Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the
assets of
the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a
series of commercial mortgage pass-through certificates (the
"Certificates").
Certain classes of the Certificates will be rated by
[____________________]
(together, the "Rating Agencies"). Certain classes of the
Certificates (the
"Registered Certificates") will be registered under the Securities
Act of 1933,
as amended (the "Securities Act"). The Trust will be created and
the
Certificates will be issued pursuant to a pooling and servicing
agreement to be
dated as of [__________], 20[__] (the "Pooling and Servicing
Agreement"), among
BACM, as depositor, Bank of America, N.A., as master servicer (the
"Master
Servicer"), [______________], as special servicer (the "Special
Servicer"), and
[____________________], as trustee (in such capacity, the
"Trustee") and as
REMIC administrator. Capitalized terms used but not otherwise
defined herein
have the respective meanings assigned to them in the Pooling and
Servicing
Agreement.
BACM intends to sell the Registered Certificates to Banc of
America
Securities LLC ("Banc of America") and [____________________]
(collectively, the
"Underwriters") pursuant to an underwriting agreement, dated as
of
[___________], 20[__] (the "Underwriting Agreement"). BACM intends
to sell
certain of the remaining classes of Certificates (the
"Non-Registered
Certificates") to Banc of America and [____________], as initial
purchasers
(together the "Initial Purchasers"), pursuant to a certificate
purchase
agreement, dated as of [___________], 20[__] (the "Certificate
Purchase
Agreement"), among BACM, Banc of America and [___]. The Registered
Certificates
are more fully described in the prospectus dated [___________],
20[__] (the
"Base Prospectus"), and the supplement to the Base Prospectus
dated
[___________], 20[__] (the "Prospectus Supplement"; and, together
with the Base
Prospectus, the "Prospectus"), as each may be amended or
supplemented at any
time hereafter. The Non-Registered Certificates are more fully
described in the
private placement memorandum, dated [___________], 20[__] (the
"Memorandum"), as
it may be amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial
Purchasers
and certain related parties with respect to certain disclosure
regarding the
Mortgage Loans and contained in the Prospectus, the Memorandum and
certain other
disclosure documents and offering materials relating to the
Certificates,
pursuant to an indemnification agreement, dated as of
[___________], 20[__] (the
"Indemnification Agreement"), among the Seller, the Purchaser, the
Underwriters
and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans. The closing for the purchase and sale of the
Mortgage Loans
shall take place on the Closing Date. The purchase price for the
Mortgage Loans
shall be an amount agreed upon by the parties in a separate
writing, which
amount includes interest accrued on the Mortgage Loans on or after
the Cut-off
Date and takes into account credits, sales concessions and such
other
adjustments, and which amount shall be payable on or about
[___________], 20[__]
in immediately available funds. The Purchaser shall be entitled to
all interest
accrued on the Mortgage Loans on and after the Cut-off Date and all
principal
payments received on the Mortgage Loans after the Cut-off Date
except for
principal and interest payments due and payable on the Mortgage
Loans on or
before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
purchase price referred to in Section 1 hereof and satisfaction of
the other
conditions set forth herein, the Seller will transfer, assign, set
over and
otherwise convey to the Purchaser, without recourse, but subject to
the terms
and conditions of this Agreement, all the right, title and interest
of the
Seller in and to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after
the Cut-off
Date, and all other recoveries of principal and interest collected
thereon after
the Cut-off Date (other than scheduled payments of principal and
interest due on
the Mortgage Loans on or before the Cut-off Date and collected
after the Cut-off
Date, which shall belong and be promptly remitted to the
Seller).
(c) On or before the Closing Date, the Seller shall deliver or
cause
to be delivered to the Purchaser or, if so directed by the
Purchaser, to the
Trustee or a custodian designated by the Trustee (a "Custodian"),
the Mortgage
File with respect to each of the Mortgage Loans; provided that the
Purchaser
hereby directs the Seller to prepare and the Seller shall prepare
or cause to be
prepared (or permit the Purchaser to prepare) with respect to the
Mortgage
Loans, the assignments of Mortgage, assignments of Assignment of
Leases and UCC
financing statements on Form UCC-2 or UCC-3, as applicable, from
the Seller in
favor of the Trustee (in such capacity) or in blank. The Seller
shall at its
expense, within 45 days after the Closing Date or, in the case of a
Replacement
Mortgage Loan, after the related date of substitution, unless
recording/filing
information is not available by such time for assignments solely
due to
recorder's office delay, in which case such submission shall be
made promptly
after such information does become available from the recorder's
office, submit
or cause to be submitted for recording or filing, as the case may
be, in the
appropriate public office for real property records or UCC
Financing Statements,
as appropriate, each assignment referred to in the immediately
preceding
sentence, unless recording/filing information is not available by
such time for
assignments solely due to recorder's office delay, in which case
such submission
shall be made promptly after such information does become available
from the
recorder's office. If any such document or instrument is lost or
returned
unrecorded or unfiled, as the case may be, because of a defect
therein, the
Seller shall in each such case promptly prepare or cause the
preparation of a
substitute therefor or cure or cause the curing of such defect, as
the case may
be, and thereafter shall in each such case, at its own expense,
submit the
substitute or corrected documents or cause such to be submitted for
recording or
filing, as appropriate.
(d) On or before the Closing Date, the Seller shall deliver or
cause
to be delivered or caused to be delivered to the Purchaser or to
its designee
all of the following items: (i) originals or copies of all
financial statements,
appraisals, environmental/engineering reports, leases, rent rolls
and tenant
estoppels in the possession or under the control of the Seller that
relate to
the Mortgage Loans and originals or copies of all documents,
certificates,
letters of credit, environmental insurance policies and related
endorsements,
and opinions in the possession or under the control of the Seller
that were
delivered by or on behalf of the related Borrowers in connection
with the
origination of the Mortgage Loans and that are reasonably required
for the
ongoing administration and servicing of the Mortgage Loans (except
to the extent
such items represent attorney-client privileged communications and
confidential
credit analysis of the client or are to be retained by a
sub-servicer that will
continue to act on behalf of the Purchaser or its designee); and
(ii) all Escrow
Payments and Reserve Funds in the possession of the Seller (or
under its
control) with respect to the Mortgage Loans. Unless the Purchaser
notifies the
Seller in writing to the contrary, the designated recipient of the
items
described in clauses (i) and (ii) of the preceding sentence shall
be the Master
Servicer.
(e) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each
Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held
by the
Trustee in escrow at all times prior to the Closing Date. Each
Mortgage File
shall contain the documents set forth in the definition of Mortgage
File under
the Pooling and Servicing Agreement.
(f) If the Seller is unable to deliver or cause the delivery of
any
original Mortgage Note, it may deliver a copy of such Mortgage
Note, together
with a lost note affidavit, and indemnity, and shall thereby be
deemed to have
satisfied the document delivery requirements of Section 2(e). If
the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage
Loan, the
original or a copy of any of the documents and/or instruments
referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of
"Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording
or filing (if
applicable, and as the case may be) thereon, solely because of a
delay caused by
the public recording or filing office where such document or
instrument has been
delivered for recordation or filing, as the case may be, so long as
a copy of
such document or instrument, certified by the Seller as being a
copy of the
document deposited for recording or filing, has been delivered, the
delivery
requirements of Section 2(e) shall be deemed to have been satisfied
as to such
missing item, and such missing item shall be deemed to have been
included in the
related Mortgage File. If the Seller cannot or does not so deliver,
or cause to
be delivered, as to any Mortgage Loan, the original of any of the
documents
and/or instruments referred to in clauses (iv) and (v) of the
definition of
"Mortgage File" in the Pooling and Servicing Agreement, because
such document or
instrument has been delivered for recording or filing, as the case
may be, the
delivery requirements of Section 2(e) shall be deemed to have been
satisfied as
to such missing item, and such missing item shall be deemed to have
been
included in the related Mortgage File. If the Seller cannot so
deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely
because such
policy has not yet been issued, the delivery requirements of
Section 2(e) shall
be deemed to be satisfied as to such missing item, and such missing
item shall
be deemed to have been included in the related Mortgage File;
provided that the
Seller, shall have delivered to the Trustee or a Custodian
appointed thereby, on
or before the Closing Date, a binding commitment for title
insurance "marked-up"
at the closing of such Mortgage Loan.
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the
direction of the
Depositor to the Trustee for the benefit of the Certificateholders
any and all
rights it may have with respect to representations and warranties
made by a
third party originator with respect to any Mortgage Loan under the
mortgage loan
purchase agreement between the Seller and such third party
originator that
originated such Mortgage Loan pursuant to which the Seller
originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error
in
the Mortgage Loan Schedule attached to this Agreement as to which a
Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan
Schedule and
distribute such amended Mortgage Loan Schedule to the parties to
the Pooling and
Servicing Agreement; provided, however, that the correction or
amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure
of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and
for
federal income tax purposes, the Seller will report the transfer of
the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in
exchange for the consideration referred to in Section 1 hereof. In
connection
with the foregoing, the Seller shall cause all of its records to
reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of
the
Mortgage Files and Servicing Files for the Mortgage Loans that may
be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has
conducted or
has failed to conduct any partial or complete examination of such
Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any
other specified
beneficiary's) right to pursue any remedy available hereunder for a
breach of
the Seller's representations and warranties set forth in Section 4,
subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby represents and warrants to and for the
benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly
authorized,
validly
existing and in good standing under the laws of the United
States
of
America.
(ii) The execution and delivery of this Agreement by the Seller,
and
the
performance of Seller's obligations under this Agreement, will
not
violate
the Seller's organizational documents or constitute a default
(or
an event
which, with notice or lapse of time, or both, would constitute
a
default)
under, or result in the breach of, any material agreement or
other
instrument to which it is a party or which is applicable to it
or
any of its
assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially
and
adversely
either the ability of the Seller to perform its obligations
under this
Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into
and
perform
its obligations under this Agreement, has duly authorized the
execution,
delivery and performance of this Agreement, and has duly
executed
and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by the Purchaser, constitutes a valid, legal and binding
obligation
of the Seller, enforceable against the Seller in accordance
with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws
affecting
the
enforcement of creditors' rights generally and (B) general
principles
of equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery
of this Agreement and its performance and compliance with the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Seller's good faith and reasonable
judgment,
is likely to affect materially and adversely either the ability
of the
Seller to perform its obligations under this Agreement or the
financial
condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has
received
service of process or, to the best of the Seller's knowledge,
threatened
against the Seller which if determined adversely to the Seller
would
prohibit the Seller from entering into this Agreement, or in
the
Seller's
good faith and reasonable judgment, would be likely to
materially
and
adversely affect either the ability of the Seller to perform
its
obligations under this Agreement or the financial condition of the
Seller.
(vii) No consent, approval, authorization or order of, or filing
or
registration with, any state or federal court or governmental
agency or
body is
required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals,
authorizations
or orders
that previously have been obtained and those filings and
registrations that previously have been completed, and except for
those
filings
and recordings of loan documents and assignments thereof that
are
contemplated by the Pooling and Servicing Agreement to be completed
after
the
Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed
on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date
(or as of
such other dates specifically provided in the particular
representation and
warranty), with respect to (and solely with respect to) each
Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller
thereof in writing
and request that the Seller correct or cure such Material Breach or
Material
Document Defect. Within [__] days of the earlier of discovery or
receipt of
written notice by the Seller that there has been a Material Breach
or a Material
Document Defect (such [__]-day period, the "Initial Resolution
Period"), the
Seller shall (i) cure such Material Breach or Material Document
Defect, as the
case may be, in all material respects or (ii) repurchase each
affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in
accordance with the terms hereof and the terms of the Pooling and
Servicing
Agreement; provided that if the Seller certifies in writing to the
Purchaser (i)
that any such Material Breach or Material Document Defect, as the
case may be,
does not and will not cause the Defective Mortgage Loan, to fail to
be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, (ii)
that such Material Breach or Material Document Defect, as the case
may be, is
capable of being corrected or cured but not within the applicable
Initial
Resolution Period, (iii) that the Seller has commenced and is
diligently
proceeding with the cure of such Material Breach or Material
Document Defect, as
the case may be, within the applicable Initial Resolution Period,
and (iv) that
the Seller anticipates that such Material Breach or Material
Document Defect, as
the case may be, will be corrected or cured within an additional
period not to
exceed the Resolution Extension Period (as defined below), then the
Seller shall
have an additional period equal to the applicable Resolution
Extension Period to
complete such correction or cure or, failing such, to repurchase
the Defective
Mortgage Loan; provided, further, that, if the Seller's obligation
to repurchase
any Defective Mortgage Loan as a result of a Material Breach or
Material
Document Defect arises within the three-month period commencing on
the Closing
Date (or within the two-year period commencing on the Closing Date
if the
Defective Mortgage Loan is a "defective obligation" within the
meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section
1.860G-2(f)), the Seller may, at its option, in lieu of
repurchasing such
Defective Mortgage Loan (but, in any event, no later than such
repurchase would
have to have been completed), (i) replace such Defective Mortgage
Loan with one
or more substitute mortgage loans that individually and
collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage
Loan" set
forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding
Substitution Shortfall Amount, such substitution and payment to be
effected in
accordance with the terms of the Pooling and Servicing Agreement.
Any such
repurchase or replacement of a Defective Mortgage Loan shall be on
a whole loan
basis. The Seller shall have no obligation to monitor the Mortgage
Loans
regarding the existence of a Material Breach or Material Document
Defect, but if
the Seller discovers a Material Breach or Material Document Defect
with respect
to a Mortgage Loan, it will notify the Purchaser. For purposes of
remediating a
Material Breach or Material Document Defect with respect to any
Mortgage Loan,
"Resolution Extension Period" shall mean the [__]-day period
following the end
of the applicable Initial Resolution Period.
Whenever one or more mortgage loans are substituted for a
Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller
shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to
the
Purchaser or its designee, (ii) certify that such substitute
mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case
may be, all of
the requirements of the definition of "Qualifying Substitute
Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such
certification
to the Purchaser or its designee. No mortgage loan may be
substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the
Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage
Loan, in which
case, absent correction or cure, in all material respects, of the
relevant
Material Breach or Material Document Defect, the Defective Mortgage
Loan will be
required to be repurchased as contemplated hereby. Monthly Payments
due with
respect to each Replacement Mortgage Loan (if any) after the
related date of
substitution, and Monthly Payments due with respect to each
Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a
Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on
or prior to
the related date of repurchase or replacement, shall belong to the
Purchaser and
its successors and assigns. Monthly Payments due with respect to
each
Replacement Mortgage Loan (if any) on or prior to the related date
of
substitution, and Monthly Payments due with respect to each
Defective Mortgage
Loan (if any) after the related date of repurchase or replacement,
shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced
as
contemplated by this Section 4, the Seller shall amend the Mortgage
Loan
Schedule attached to this Agreement to reflect the removal of the
Defective
Mortgage Loan and, if applicable, the substitution of the related
Replacement
Mortgage Loan(s) and shall forward such amended schedule to the
Purchaser.
The Seller's obligations to cure any Material Breach or
Material
Document Defect or repurchase or substitute any affected Mortgage
Loan or
Mortgaged Property pursuant to this Section 4(c) constitute the
sole remedies
available to the Purchaser in connection with a breach of any of
the Seller's
representations and warranties contained in Section 4(b) and it is
acknowledged
and agreed that those representations and warranties are being made
for risk
allocation purposes only.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c)
that the
Purchaser shall have executed and delivered such instruments of
transfer or
assignment then presented to it by the Seller, in each case without
recourse, as
shall be necessary to vest in the Seller the legal and beneficial
ownership of
such Defective Mortgage Loan (including any property acquired in
respect thereof
or proceeds of any insurance policy with respect thereto), to the
extent that
such ownership interest was transferred to the Purchaser
hereunder.
(d) Subject to the specific delivery requirements set forth in
the
Pooling and Servicing Agreement, if the Seller cannot deliver on
the Closing
Date any document that is required to be part of the Mortgage File
for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable
efforts from and after the Closing Date to obtain, and deliver
to the
Purchaser or its designee, all documents missing from such
Mortgage
File that
were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic
reports
regarding
its efforts to complete such Mortgage File, such reports to be
made on
the 90th day following the Closing Date and every 90 days
thereafter
until the Seller has delivered to the Purchaser or its designee
all
documents required to be delivered by the Seller as part of
such
Mortgage
File;
(iii) upon receipt by the Seller from the Purchaser or its
designee
of any
notice of any remaining deficiencies to such Mortgage File as
of
the 90th
day following the Closing Date, the Seller shall reconfirm its
obligation
to complete such Mortgage File and to correct all deficiencies
associated
therewith, and, if it fails to do so within 45 days after its
receipt of
such notice, the Seller shall deliver to the Purchaser or its
designee a
limited power of attorney (in a form reasonably acceptable to
the Seller
and the Purchaser) permitting the Purchaser or its designee to
execute
all endorsements (without recourse) and to execute and, to the
extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the
subject
Mortgage
Loan, together with funds reasonably estimated by the Purchaser
to be
necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties
under
the
Pooling and Servicing Agreement for any out-of-pocket costs and
expenses
resulting from the Seller's failure to deliver all documents
required
to be part of such Mortgage File; and
(v) the Seller shall otherwise use commercially reasonable
efforts
to
cooperate with the Purchaser and any parties under the Pooling
and
Servicing
Agreement in any remedial efforts for which a Document Defect
with
respect to such Mortgage File would otherwise cause a delay.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the
Purchaser (or
with respect to any serviced Companion Loan that is deposited into
another
securitization, the depositor for such other securitization) and
the Trustee
with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining
to
information required by Regulation AB attached to the Pooling and
Servicing
Agreement, within the time periods set forth in Article XI of the
Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or
a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the
Pooling and
Servicing Agreement or a defeasance, any fees or expenses related
thereto,
including any fee charged by a Rating Agency that is rendering a
written
confirmation, to the extent that the related loan documents do not
permit the
lender to require payment of such fees and expenses from the
Mortgagor and the
Master Servicer or the Special Servicer, as applicable, has
requested that the
related Mortgagor pay such fees and expenses and such Mortgagor
refuses to do
so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly
existing
and in
good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing
or
registration with, any state or federal court or governmental
agency or
body is
required for the consummation by the Purchaser of the
transactions
contemplated herein, except for those consents, approvals,
authorizations
or orders
that previously have been obtained and those filings and
registrations that previously have been completed, and except for
those
filings of
loan documents and assignments thereof that are contemplated by
the
Pooling and Servicing Agreement to be completed after the
Closing
Date.
(iii) The execution and delivery of this Agreement by the
Purchaser,
and the
performance and compliance with the terms of this agreement by
the
Purchaser,
will not violate the Purchaser's certificate of incorporation
or by-laws
or constitute a default (or an event which, with notice or
lapse of
time, or both, would constitute a default) under, or result in
the breach
of, any material agreement or other instrument to which it is a
party or
which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter
into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized the
execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery
by the Seller, constitutes a valid, legal and binding
obligation
of the
Purchaser, enforceable against the Purchaser in accordance with
the
terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of
creditors'
rights generally, and (B) general principles of equity,
regardless
of whether such enforcement is considered in a proceeding in
equity or
at law.
(vi) The Purchaser is not in violation of, and its execution
and
delivery of this
Agreement and its performance and compliance with the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Purchaser's good faith and reasonable
judgment,
is likely to affect materially and adversely either the ability
of the
Purchaser to perform its obligations under this Agreement or
the
financial
condition of the Purchaser.
(vii) No litigation is pending with regard to which the
Purchaser
has
received service of process or, to the Purchaser's knowledge,
threatened
against the Purchaser which would prohibit the Purchaser from
entering
into this Agreement or, in the Purchaser's good faith and
reasonable
judgment, is likely to materially and adversely affect either
the
ability of the Purchaser to perform its obligations under this
Agreement
or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker,
agent or other person, other than the Underwriters and their
respective
affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or
the
consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with [________________] (the
"Accountants") in making available all information and taking all
steps
reasonably necessary to permit the Accountants to deliver the
letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall
be held at the offices of [Cadwalader, Wickersham & Taft LLP,
227 West Trade
Street, Suite 2400, Charlotte, North Carolina 28202] at 10:00 a.m.,
[Charlotte]
time, on the Closing Date.
The Closing shall be subject to each of the following
conditions,
which can only be waived or modified by mutual consent of the
parties hereto.
(i) All of the representations and warranties of the Seller and
of
the Purchaser
specified in Sections 4 and 5 hereof shall be true and
correct as
of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement
(the
"Closing
Documents"), in such forms as are agreed upon and reasonably
acceptable
to the Purchaser and the Seller, shall be duly executed and
delivered
by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the
Purchaser,
the
Trustee or a Custodian, or the Master Servicer shall have received
to
hold in
trust pursuant to the Pooling and Servicing Agreement, as the
case
may be,
all documents and funds required to be so delivered pursuant to
Sections
2(c), 2(d) and 2(e) hereof;
(iv) All other terms and conditions of this Agreement required to
be
complied
with on or before the Closing Date shall have been complied
with,
and the
Seller shall have the ability to comply with all terms and
conditions
and perform all duties and obligations required to be complied
with or
performed after the Closing Date;
(v) The Seller (or an affiliate thereof) shall have paid or
agreed
to pay all
fees, costs and expenses payable to the Purchaser or otherwise
pursuant
to this Agreement; and
(vi) Neither the Certificate Purchase Agreement nor the
Underwriting
Agreement
shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best
efforts
to perform their respective obligations hereunder in a manner that
will enable
the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and
the
delivery thereof on or prior to the Closing Date can only be waived
and modified
by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser
and
the Seller, and the Pooling and Servicing Agreement, duly executed
and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer
of
the Seller, in his or her individual capacity, and dated the
Closing Date, upon
which the Underwriters, and BACM may rely, attaching thereto as
exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Comptroller of the Currency, dated not earlier than 30 days prior
to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer
or
authorized signatory of the Seller and dated the Closing Date, and
upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely
to the
effect that (i) the representations and warranties of the Seller in
the
Agreement are true and correct in all material respects at and as
of the date
hereof with the same effect as if made on the date hereof, and (ii)
the Seller
has, in all material respects, complied with all the agreements and
satisfied
all the conditions on its part required under the Agreement to be
performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to
such
reasonable assumptions and qualifications as may be requested by
counsel for the
Seller, each as reasonably acceptable to counsel for the Purchaser,
the
Underwriters and the Initial Purchasers, dated the Closing Date and
addressed to
the Purchaser, the Underwriters, the Trustee, the Initial
Purchasers, and each
Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of
the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the
respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the
date
of any free writing prospectus, Prospectus Supplement and
Memorandum
respectively, and addressed to, and in form and substance
acceptable to the
Purchaser and the Underwriters in the case of the free writing
prospectus and
the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the
case of the Memorandum stating in effect that, using the
assumptions and
methodology used by the Purchaser, all of which shall be described
in such
letters, they have recalculated such numbers and percentages
relating to the
Mortgage Loans set forth in any free writing prospectus, the
Prospectus
Supplement and the Memorandum, compared the results of their
calculations to the
corresponding items in any free writing prospectus, the Prospectus
Supplement
and the Memorandum, respectively, and found each such number and
percentage set
forth in any free writing prospectus, the Prospectus Supplement and
the
Memorandum, respectively, to be in agreement with the results of
such
calculations.
SECTION 9. Costs.
The
