EXHIBIT 99.2
BCREI Mortgage Loan Purchase and Sale Agreement
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is
dated and effective as of October 13, 2005,
between Barclays Capital Real Estate
Inc., as seller (the "Seller"), 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") 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 (i)
the
Mortgage Loans and (ii) certain mortgage
loans transferred by Bank of America,
N.A. ("Bank of America") to the Purchaser
pursuant to a mortgage loan purchase
and sale agreement, dated as of the date
hereof between Bank of America 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 October 1, 2005
(the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank
of America, as master servicer (the
"Master Servicer"), Midland Loan Services,
Inc., as special servicer with
respect to the Mortgage Loans other than
the 417 Fifth Avenue Mortgage Loan (the
"Special Servicer"), LNR Partners, Inc., as
special servicer with respect to the
417 Fifth Avenue Mortgage Loan ("LNR"), and
LaSalle Bank National Association,
as trustee (in such capacity, the
"Trustee") and REMIC administrator, and ABN
AMRO Bank N.V., as fiscal agent.
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 ("BAS"), Barclays Capital
Inc. ("BCI"), Deutsche Bank Securities
Inc. ("Deutsche") and Morgan Stanley &
Co. Incorporated ("MSI" and, collectively
with BAS, BCI and Deutsche, the
"Underwriters") pursuant to an underwriting
agreement, dated as of September 30, 2005
(the "Underwriting Agreement"). BACM
intends to sell the remaining Classes of
Certificates (the "Non-Registered
Certificates") to BAS and BCI, as initial
purchasers (collectively, the "Initial
Purchasers"), pursuant to a certificate
purchase agreement, dated as of
September 30, 2005 (the "Certificate
Purchase Agreement"), among BACM, BAS 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 September 30, 2005
(the "Prospectus Supplement"; and,
together with the Basic Prospectus, the
"Prospectus"), as each may be amended or
supplemented at any time hereafter. The
privately offered Non-Registered
Certificates, other than the Class R-TM
Certificates, are more fully described
in a private placement memorandum, dated
September 30, 2005 (the "Memorandum"),
as it may be amended or supplemented at any
time hereafter. The Class R-TM
Certificates are more fully described in a
private placement memorandum, dated
October 12, 2005 (the "Class R-TM
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, the Class R-TM
Memorandum and certain other disclosure
documents and offering materials
relating to the Certificates, pursuant to
an indemnification agreement, dated as
of October 13, 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 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 (including the Interest Deposit
Amount) and which amount shall be payable
on or about October 13, 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 (other
than the Servicing Rights).
(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 or within the time periods
specified in Section 2.01 of the Pooling
and Servicing Agreement, 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 documents, instruments
and agreements required to be delivered
by the Purchaser to the Trustee under
Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements
of such Section 2.01, and such other
documents, instruments and agreements as
the Purchaser or the Trustee shall
reasonably request.
(d) 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.
(e) 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(c). 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, and then subject
to the requirements of Section 4(d), the
delivery requirements of Section 2(c)
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, then subject to Section 4(d), the
delivery requirements of Section 2(c) 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(c) 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
countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(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 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
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. With
respect to the Torre Mayor Loan only, the
Seller also represents and warrants
that no separate registration or other
action is required under United States
federal or state securities laws as a
result of the inclusion of such Mortgage
Loan in the Mortgage Pool in order to offer
any Registered Certificate as
contemplated by the Prospectus, and agrees
that any breach of this
representation and warranty shall
constitute an incurable Material Breach.
(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 or REO Loan (each, a "Defective
Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof
and, if applicable, the terms of the
Pooling and Servicing Agreement, with
payment to be made in accordance with the
reasonable directions of the Purchaser;
provided that if the Seller certifies in
writing to the Purchaser (i) that, as
evidenced by an accompanying Opinion of
Counsel, 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)), and if the Defective
Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller
may, at its option, in lieu of
repurchasing such Defective Mortgage Loan
(except in the case of the CP
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,
servicing released 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 this Section 4(c), "Resolution Extension
Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect
to
any
Mortgage Loan, the 90-day period following the end of the
applicable
Initial
Resolution Period;
(ii) for purposes of remediating a Material Document Defect
with
respect to
any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan
during, the
applicable
Initial Resolution Period, the period commencing at the end of
the
applicable Initial Resolution Period and ending on, and including,
the
earlier of
(i) the 90th day following the end of such Initial Resolution
Period and
(ii) the 45th day following receipt by the Seller of written
notice
from the Master Servicer or the Special Servicer of the
occurrence
of any
Servicing Transfer Event with respect to such Mortgage Loan
subsequent
to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect
with
respect to
any Mortgage Loan that is a not a Specially Serviced Loan as of
the
commencement of the applicable Initial Resolution Period, but as
to
which a
Servicing Transfer Event occurs during such Initial Resolution
Period,
the period commencing at the end of the applicable Initial
Resolution
Period and ending on, and including, the 90th day following
receipt by
the Seller of written notice from the Master Servicer or the
Special
Servicer of the occurrence of such Servicing Transfer Event;
and
(iv) for purposes of remediating a Material Document Defect
with
respect to
any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero
(-0-) days;
provided,
however, that if the Seller did not receive written notice from
the Master
Servicer or the Special Servicer of the relevant Servicing
Transfer
Event as of the commencement of the applicable Initial
Resolution
Period,
then such Servicing Transfer Event shall be deemed to have
occurred
during such Initial Resolution Period and the immediately
preceding
clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90
days
to cure such Material Document Defect or
Material Breach, provided that the
Seller has commenced and is diligently
proceeding with the cure of such Material
Document Defect or Material Breach and such
failure to cure is solely the result
of a delay in the return of documents from
the local filing or recording
authorities.
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
Cross-Collateralized Mortgage Loan or part
of 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 Cross-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 Cross-Collateralized Mortgage Loan
and to each other Mortgaged Property
included in such portfolio and the Seller
shall repurchase or substitute for any
related Cross-Collateralized 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
Cross-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,
(b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii)
the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage
Loans or Mortgaged Properties is not
greater than the lesser of (a) the
loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on
the Closing Date, and (c) 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 Cross-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
Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the 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, the
Seller and the Depositor shall either
uncross the repurchased
Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized
Loan, to forbear from enforcing any
remedies against the other's Primary
Collateral (as defined below), but each is
permitted to exercise remedies against the
Primary Collateral securing its
respective affected Cross-Collateralized
Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the
Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as
such exercise does not impair the
ability of the other party to exercise its
remedies against its Primary
Collateral. If the exercise of remedies by
one party would impair the ability of
the other party to exercise its remedies
with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage
Loans or Mortgaged Properties held by
such party, then both parties shall forbear
from exercising such remedies until
the related Mortgage Loan documents can be
modified to remove the threat of
impairment as a result of the exercise of
remedies. "Primary Collateral" shall
mean the Mortgaged Property directly
securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgage
Property as to which the related lien may
only be foreclosed upon by exercise of
cross-collateralization of such loans.
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.
Except as set forth in Section 4(f), it is understood and
agreed
that the obligations of the Seller set
forth in this Section 4(c) to cure a
Material Breach or a Material Document
Defect or repurchase or replace the
related Defective Mortgage Loan(s),
constitute the sole remedies available to
the Purchaser with respect to any Breach or
Document Defect.
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
October
13, 2005, 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 on the Closing Date; 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) [Reserved].
(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 Mortgage 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
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 best of 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
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 Ernst & Young, LLP
(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) The result of any examination of the Mortgage Files and
Servicing
Files for the Mortgage Loans performed by or on behalf of the
Purchaser
pursuant to Section 3 hereof shall be satisfactory to the
Purchaser
in its reasonable determination;
(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 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 any other opinions of
counsel for the Seller reasonably
requested by the Rating Agencies in
connection with the issuance of the
Certificates; 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 Memorandum,
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 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 preliminary Prospectus
Supplement, the Prospectus Supplement and
the Memorandum, compared the results
of their calculations to the corresponding
items in any preliminary Prospectus
Supplement, the Prospectus Supplement and
the Memorandum, respectively, and
found each such number and percentage set
forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and
the Memorandum, 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 (with copies to Paul E. Kurzeja,
Esq., Assistant General Counsel, at Bank of
America Corporate Center, 100 North
Tryon Street, 20th Floor, Charlotte, North
Carolina 28255 and to Henry A.
LaBrun, Esq., Cadwalader, Wickersham &
Taft LLP, 227 West Trade Street, Suite
2400, Charlotte, North Carolina 28202), 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
Real Estate 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 AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO
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. In
connection with the transfer of any
Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and
Servicing Agreement, the Trustee, for the
benefit of the Certificateholders, is
expressly authorized to assign its rights
and obligations under this Agreement,
in whole or in part, to the transferee of
such Mortgage Loan. To the extent of
any such assignment, such transferee shall
be deemed to be the Purchaser
hereunder (but solely with respect to such
Mortgage Loan that was transferred to
it). 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 insurance policies and all
other documents in the related Mortgage
Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance
with the terms thereof (other then
scheduled payments of interest and
principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion,
voluntary or involuntary, of the
foregoing into cash, instruments,
securities or other property, whether in the
form of cash, instruments, securities or
other property. The Seller and the
Purchaser shall, to the extent consistent
with this Agreement, take such actions
as may be necessary to ensure that, if this
Agreement were deemed to create a
security interest in the Mortgage Loans,
such security interest would be deemed
to be a perfected security interest of
first priority under applicable law and
will be maintained as such throughout the
term of this Agreement and the Pooling
and Servicing Agreement. In connection
herewith, the Purchaser shall have all of
the rights and remedies of a secured party
and creditor under the Uniform
Commercial Code as in force in the relevant
jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of
Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a
"Cross-Collateralized Group"), by
their terms, cross-defaulted and
cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan
Schedule. For purposes of reference,
the Mortgaged Property that relates or
corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the
property identified in the Mortgage
Loan Schedule as corresponding thereto. The
provisions of this Agreement,
including without limitation, each of the
representations and warranties set
forth in Schedule II hereto and each of the
capitalized terms used but not
defined herein but defined in the Pooling
and Servicing Agreement, shall be
interpreted in a manner consistent with
this Section 19. In addition, if there
exists with respect to any
Cross-Collateralized Group only one original of any
document referred to in the definition of
"Mortgage File" in the Pooling and
Servicing Agreement and covering all the
Mortgage Loans in such
Cross-Collateralized Group, then the
inclusion of the original of such document
in the Mortgage File for any of the
Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such
original in the Mortgage File for
each such Mortgage Loan.
"Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized
and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Tax.
(a) With respect to Loan No. 20050022 on the Mortgage Loan
Schedule
(the "Mexico Loan"), the Seller hereby
agrees to indemnify the Trust for any and
all costs and expenses incurred by the
Trust, including interest on Advances,
Special Servicing Fees, Additional Trust
Fund Expenses and the costs and
expenses of the Special Servicer in
connection with, or arising out of the
enactment after the Closing Date of, any
law of Mexico or any political
subdivision thereof changing in any way the
laws relating to the taxation of
mortgages or security agreements or debts
secured by mortgages or security
agreements or the interest of a lender or
secured party in the property covered
thereby or interest charged under a loan or
requiring any withholding of taxes
by a borrower in respect of a loan, which,
in each case, applies to the Mexico
Loan (any such enacted legislation, the
"Mexico Tax Legislation"); provided that
the foregoing indemnification shall not
apply to Special Servicing Fees and
other costs and expenses incurred by the
Special Servicer that (i) are incurred
as a result of the failure of the related
mortgagor under the Mexico Loan to
make certain "gross-up" payments pursuant
to the terms of the Mexico Loan loan
agreement (such payments, the "Mexico
Gross-Up Payments") and (ii) are incurred
prior to the date that the failure of the
related mortgagor to make such Mexico
Gross-Up Payment shall constitute a
Servicing Transfer Event with respect to the
Mexico Loan in accordance with clause (iii)
of the definition of "Servicing
Transfer Event".
(b) As specified in Section 3.33(a) of the Pooling and
Servicing
Agreement, the Seller will have the option,
exercisable in its sole discretion,
to make Mexico Gross-Up Payments that are
required to be made by the mortgagor
under the terms of the loan agreement for
the Mexico Loan, to the extent the
mortgagor fails to make such payments. As
specified in Section 3.33(b) of the
Pooling and Servicing Agreement, the Seller
will have the option, exercisable in
its sole discretion, to purchase the Mexico
Loan upon the enactment of the
Mexico Tax Legislation, so long as an event
of default under the Mexico Loan has
occurred and is continuing.
The Seller further represents that as of the Closing Date and as
of
any date thereafter on which the Mexico
Loan is included as part of the Trust
Fund (i) the obligation of the mortgagor
under the Mexico Loan to make the
Mexico Gross-Up Payments and (ii) the
ability of the mortgagee under such loan
agreement to accelerate the maturity of the
Mexico Loan as a result of the
mortgagor's failure to make any Mexico
Gross-Up Payments required by such loan
agreement (the preceding clauses (i) and
(ii) are hereinafter referred to
collectively as the "Mexico Representation
Remedies"), in each case, are
enforceable in accordance with their terms
under such loan agreement, except as
such enforcement may be limited by (a)
anti-deficiency laws or bankruptcy,
receivership, conservatorship,
reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of
creditors' rights generally, and by
(b) general principles of equity
(regardless of whether such enforcement is
considered in a proceeding in equity or at
law) (the preceding clauses (a) and
(b) are hereinafter referred to
collectively as the "Mexico Representation
Qualifications"); provided that the Mexico
Representation Qualifications shall
not apply to the foregoing representation
regarding the enforceability of the
Mexico Representation Remedies to the
extent that the enforceability of such
remedies is prohibited solely due to (1)
the Mexico Tax Legislation expressly
prohibiting the exercise of such remedies
or (2) a final, non-appealable
determination by a court of competent
jurisdiction that the Mexico Tax
Legislation prohibits the exercise of such
remedies.
SECTION 21. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement
sets
forth the entire understanding of the
parties relating to the subject matter
hereof, and all prior understandings,
written or oral, are superseded by this
Agreement. This Agreement may not be
modified, amended, waived or supplemented
except as provided herein.
SECTION 22. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 23. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the
Purchaser shall not consent to any
amendment of the Pooling and Servicing
Agreement which will increase the
obligations of, or otherwise materially
adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their
names to be signed hereto by their
respective duly authorized officers as of the
date first above written.
BARCLAYS CAPITAL REAL ESTATE INC.
By: /s/ Kristen
Rodriguez
------------------------------------
Name: Kristen
Rodriguez
Title: Vice President
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Edward
J. Vaccaro
------------------------------------
Name: Edward J.
Vaccaro
Title: Vice President
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Sequence Loan
Number Number
Loan
Seller Property Name
Street Address
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<S>
<C>
<C>
<C>
<C>
1
20050796
Barclays
417 Fifth Avenue
417 Fifth Avenue
10
20050022
Barclays
Torre Mayor
505 Paseo de la Reforma
11
20051048
Barclays
Polo Club Apartments
4201 South Decatur Boulevard
18
20050837
Barclays
i.park on Hudson
15-45 Wells Avenue
19
20050709
Barclays
Columbia Mall
2800 Columbia Road
20
20051082
Barclays
New Hampshire Commons
1144 New Hampshire Avenue
23
20050917
Barclays
Livingston Shopping Center
530 West Mount Pleasant Avenue
29
20051135
Barclays
Arboretum Apartments
1100 Emajean Street
30
20050892
Barclays
Super Stop & Shop
1710 Avenue Y
32
20051162
Barclays
Scarsdale Fairway Apartments
300 South Central Avenue
39
20050804
Barclays
Huntington Parking Garage
947 Chester Avenue
43
20051188
Barclays
Marriot Fort Wayne Indiana
305 East Washington Center Road
45
20050946
Barclays
Residence Inn - Oakbrook
790 Jorie Boulevard
50
20051041
Barclays
Stone Ridge Apartments
7111 Vedder Drive
51
20051153
Barclays
Ocean City Square Shopping Center
11805 Coastal Highway
54
20051054
Barclays
Fox Fire Apartments
4110-4380 Morning Sun Drive & 4315-4331
North Chestnut Street
56
20051072
Barclays
Hampton Inn-Sarasota
5995 Cattleridge Boulevard
58
20051059
Barclays
Hilton Garden Inn Sarasota-Bradenton Airport 8270 North Tamiami
Trail
60
20050896
Barclays
Hilton Garden Inn - Syracuse
6004 Fair Lakes Road
61
20051074
Barclays
Holiday Inn Express-Siesta Key
6600 South Tamiami Trail
66
20051075
Barclays
AmericInn Hotel & Suites
5931 Fruitville Road
68
20
