EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is
dated and effective as of April 12, 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 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, and (iii) 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, 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
Fitch, 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 April 1, 2005 (the "Pooling
and Servicing Agreement"), among BACM, as
depositor, Bank of America, N.A., as
master servicer (the "Master Servicer"),
J.E. Robert Company, Inc., as special
servicer (the "Special Servicer"), and
Wells Fargo Bank, N.A., 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"), Goldman, Sachs &
Co. ("Goldman Sachs") and Greenwich
Capital Markets, Inc. ("Greenwich")
(collectively, the "Underwriters") pursuant
to an underwriting agreement, dated as of
March 31, 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, as
initial purchasers (together the "Initial
Purchasers"), pursuant to a
certificate purchase agreement dated as of
March 31, 2005 (the "Certificate
Purchase Agreement"), among BACM, Banc of
America, BSCI. BACM intends to place
certain other of the remaining Classes of
Certificates (the "Privately Placed
Certificates") to Banc of America, as
private placement agent (the "Private
Placement Agent"), pursuant to a private
placement agency agreement dated as of
March 31, 2005 (the "Private Placement
Agency Agreement"), between BACM and Banc
of America. The Registered Certificates are
more fully described in the
prospectus dated March 31, 2005 (the "Basic
Prospectus"), and the supplement to
the Basic Prospectus dated March 31, 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 four private placement
memoranda, each dated March 31, 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 April 12, 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 $582,941,422.50, 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
April 12, 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 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 (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, NC1-027-22-03,
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 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
