EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is
dated and effective as of December 29, 2005, between Barclays
Capital Real
Estate Inc., as seller (the "Seller" or "BCREI") 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 multifamily and commercial mortgage
loans (the
"Mortgage Loans") identified on the schedule annexed hereto as
Schedule I (the
"Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of (i)
the
Mortgage Loans, (ii) certain mortgage loans transferred by Barclays
Capital Real
Estate Inc. ("BCREI") to the Purchaser pursuant to a mortgage loan
purchase and
sale agreement, dated as of the date hereof between BCREI and the
Purchaser, and
(iii) certain mortgage loans transferred by Bear Stearns Commercial
Mortgage,
Inc. ("BSCMI") to the Purchaser pursuant to a mortgage loan
purchase and sale
agreement, dated as of the date hereof between BSCMI and the
Purchaser, 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 Standard & Poor's Ratings
Services, a division of
The McGraw-Hill Companies, Inc. and/or Moody's Investors Service,
Inc.
(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 December 1, 2005 (the "Pooling and Servicing
Agreement"), among
BACM, as depositor, Bank of America, N.A., as master servicer (the
"Master
Servicer"), LNR Partners, Inc., as special servicer (the "Special
Servicer"),
and LaSalle Bank National Association 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"), Bear, Stearns & Co Inc.
("BSCI"), Barclays
Capital Inc. ("BCI"), Deutsche Bank Securities Inc. ("Deutsche
Bank") and Morgan
Stanley & Co. Incorporated ("Morgan Stanley") (collectively,
the "Underwriters")
pursuant to an underwriting agreement, dated as of December 16,
2005 (the
"Underwriting Agreement"). BACM intends to sell certain of the
remaining classes
of Certificates (the "Non-Registered Certificates") to Banc of
America and BSCI
and BCI, as initial purchasers (together the "Initial Purchasers"),
pursuant to
a certificate purchase agreement dated as of December 16, 2005 (the
"Certificate
Purchase Agreement"), among BACM, Banc of America, BSCI and BCI.
The Registered
Certificates are more fully described in the prospectus dated
September 30, 2005
(the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated
December 16, 2005 (the "Prospectus Supplement"; and, together with
the Basic
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 memoranda, dated December 16, 2005 (the
"Memoranda"), as they
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 Memoranda and
certain other
disclosure documents and offering materials relating to the
Certificates,
pursuant to an indemnification agreement, dated as of December 16,
2005 (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 $292,642,110, which amount includes interest accrued on
the Mortgage
Loans on or after the Cut-off Date and which amount shall be
payable on or about
December 29, 2005 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 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) [Reserved].
(h) 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.
(i) 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.
(j) 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 corporation, duly authorized, validly
existing
and in
good standing under the laws of the State of Delaware.
(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 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
and orders
that previously have been obtained and those filings and
registrations that previously have been completed, and except for
those
filings
and recordings of Mortgage 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 90 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 90-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 REMIC
Provisions, (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; and 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
Regulation
Section 1.860G-2(f)), the Seller may, at its option, in lieu of
repurchasing
such Defective Mortgage Loan (except in the case of the KC Pari
Passu Note A-1
Component 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 90-day period
following the end of
the applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document
Defect, then,
for purposes of (i) determining whether such Breach or Document
Defect is a
Material Breach or Material Document Defect, as the case may be,
and (ii) the
application of remedies, such Cross-Collateralized Group shall be
treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage
Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio
of Mortgaged
Properties (that provides that a property may be uncrossed from the
other
Mortgaged Properties) and (z) the applicable Material Breach or
Material
Document Defect does not constitute a Material Breach or Material
Document
Defect, as the case may be, as to any related
Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in
such portfolio
(without regard to this paragraph), then the applicable Material
Breach or
Material Document Defect (as the case may be) will be deemed to
constitute a
Material Breach or Material Document Defect (as the case may be) as
to any
related Crossed-Collateralized Mortgage Loan and to each other
Mortgaged
Property included in such portfolio and the Seller shall repurchase
or
substitute for any related Crossed-Collateralized Mortgage Loan or
Mortgage Loan
in the manner described above unless, in the case of a Material
Breach or
Material Document Defect, both of the following conditions would be
satisfied if
the Seller were to repurchase or substitute for only the
affected
Crossed-Collateralized Mortgage Loans or affected Mortgaged
Properties as to
which a Material Breach or Material Document Defect had occurred
without regard
to this paragraph: (i) the debt service coverage ratio for any
remaining
Cross-Collateralized Mortgage Loans or Mortgaged Properties for the
four
calendar quarters immediately preceding the repurchase or
substitution is not
less than the greater of (a) the debt service coverage ratio
immediately prior
to the repurchase, and (b) 1.25x and (ii) the loan-to-value ratio
for any
remaining Crossed-Collateralized Mortgage Loans or Mortgaged
Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately
prior to the
repurchase, and (b) 75%. In the event that both of the conditions
set forth in
the preceding sentence would be satisfied, the Seller may elect
either to
repurchase or substitute for only the affected
Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or
Material
Document Defect exists or to repurchase or substitute for the
aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the related Mortgage Loan Seller repurchases
or
substitutes for an affected Cross-Collateralized Mortgage Loan or
Mortgaged
Property in the manner prescribed above while the Trustee continues
to hold any
related Cross-Collateralized Mortgage Loans or Mortgaged Property,
the Seller
and the Purchaser agree to uncross the repurchased
Cross-Collateralized Mortgage
Loan or affected property; provided the Purchaser has received a
tax opinion
that uncrossing the repurchased Cross-Collateralized Mortgage Loan
or Mortgaged
Property will not adversely affect the status of any of REMIC I,
REMIC II or the
Component Mortgage Loan REMIC as a REMIC under the Code.
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 obligation 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.
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
and orders that
previously have been obtained and those filings and
registrations that previously have been completed, and except for
those
filings of
Mortgage 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 Deloitte & Touche
(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 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) [Reserved];
(v) 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;
(vi) 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
(vii) 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
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
Secretary of the State of Delaware, 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 preliminary Prospectus Supplement, Prospectus Supplement and
Memoranda
respectively, and addressed to, and in form and substance
acceptable to the
Purchaser and the Underwriters in the case of the preliminary
Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and
the Initial
Purchasers in the case of the Memoranda 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 preliminary
Prospectus
Supplement, the Prospectus Supplement and the Memoranda, compared
the results of
their calculations to the corresponding items in any preliminary
Prospectus
Supplement, the Prospectus Supplement and the Memoranda,
respectively, and found
each such number and percentage set forth in any preliminary
Prospectus
Supplement, the Prospectus Supplement and the Memoranda,
respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with
the
transactions contemplated hereunder (including without limitation,
the issuance
of the Certificates as contemplated by the Pooling and Servicing
Agreement)
shall be allocated and as set forth in a separate writing between
the parties.
SECTION
10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered to
or mailed, by registered mail, postage prepaid, by overnight mail
or courier
service, or transmitted by facsimile and confirmed by a similar
mailed writing,
if to the Purchaser, addressed to Banc of America Commercial
Mortgage Inc., 214
North Tryon Street, NC1-027-21-02, Charlotte, North Carolina 28255,
Attention:
Stephen Hogue, telecopy number: (704) 386-1094, or such other
address as may
hereafter be furnished to the Seller in writing by the Purchaser;
if to the
Seller, addressed to Barclays Capital Real Estate Inc., 200 Park
Avenue, New
York, New York 10166, Attention: Kristen Rodriguez, telecopy
number: (212)
412-7476 (with copies to Ian Sterling at Barclays Capital Inc., 200
Park Avenue,
New York, New York 10166 and Anna H. Glick, Esq. at Cadwalader,
Wickersham &
Taft LLP, One World Financial Center, New York, New York 10281) or
to such other
addresses as may hereafter be furnished to the Purchaser by the
Seller in
writing.
SECTION 11. Representations, Warranties and Agreements to
Survive
Delivery.
All representations, warranties and agreements contained in
this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to
the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this
Agreement that is prohibited or which is held to be void or
unenforceable shall
be ineffective to the extent of such prohibition or
unenforceability without
invalidating the remaining provisions hereof. Any part,
provision,
representation, warranty or covenant of this Agreement that is
prohibited or
unenforceable or is held to be void or unenforceable in any
particular
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability in
any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each
of which shall be deemed to be an original, but all of which
together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN
TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH
THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW YORK AS
THE
GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY
IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN
NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO
THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION
OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may,
from time to
time, reasonably request in order to effectuate the purposes and to
carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall
not be assigned by the Seller without the prior written consent of
the
Purchaser, except that any person into which the Seller may be
merged or
consolidated, or any corporation or other entity resulting from any
merger,
conversion or consolidation to which the Seller is a party, or any
person
succeeding to all or substantially all of the business of the
Seller, shall be
the successor to the Seller hereunder. In connection with its
transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto,
the
Purchaser shall have the right to assign its rights and obligations
under this
Agreement to the Trustee for the benefit of the Certificateholders.
To the
extent of any such assignment, the Trustee or its designee
(including, without
limitation, the Special Servicer) shall be deemed to be the
Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce
the
obligations of the Seller under this Agreement as contemplated by
Section 2.03
of the Pooling and Servicing Agreement. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser, and their permitted successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or
modified
unless such waiver or modification is in writing and signed by a
duly authorized
officer of the party against whom such waiver or modification is
sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller
agreed
to be made hereby shall be, and be construed as a sale by the
Seller of all of
the Seller's right, title and interest in and to the Mortgage
Loans. It is,
further, not intended that such conveyance be deemed a pledge of
the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other
obligation of the
Seller, as the case may be. However, in the event that
notwithstanding the
intent of the parties, the Mortgage Loans are held to be property
of the Seller,
or if for any reason this Agreement is held or deemed to create a
security
interest in the Mortgage Loans, then it is intended that, (i) this
Agreement
shall also be deemed to be a security agreement within the meaning
of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial
Code of any
other applicable jurisdiction; and (ii) the conveyance provided for
in this
Section shall be deemed to be a grant by the Seller to the
Purchaser of a
security interest in all of its right (including the power to
convey title
thereto), title and interest, whether now owned or hereafter
acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insuranc
