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EXHIBIT 99.1
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 Bank of
America, N.A., as
seller (the "Seller" or "Bank of America") and Banc of America
Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise
convey to
the Purchaser, and the Purchaser desires to purchase, subject to
the terms and
conditions set forth below, the 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, (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 $1,413,291,482.93, 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 (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, 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 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 Seller's knowledge,
threatened
against the Seller which if determined adversely to the Seller
would
prohibit the Seller from entering into this Agreement, or in the
Seller's
good faith and reasonable judgment, would be likely to
materially and
adversely affect either the ability of the Seller to perform
its
obligations under this Agreement or the financial condition of
the Seller.
(vii) No consent, approval, authorization or order of, or filing
or
registration with, any state or federal court or governmental
agency or
body is required for the consummation by the Seller of the
transactions
contemplated herein, except for those consents, approvals,
authorizations
and orders that previously have been obtained and those filings
and
registrations that previously have been completed, and except
for those
filings and recordings of Mortgage Loan documents and
assignments thereof
that are contemplated by the Pooling and Servicing Agreement to
be
completed after the Closing Date.
(b) The Seller hereby makes the representations and
warranties
contained in Schedule II (subject to any exceptions thereto
listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing
Date (or as of
such other dates specifically provided in the particular
representation and
warranty), with respect to (and solely with respect to) each
Mortgage Loan.
(c) Upon discovery of any Material Breach or Material
Document
Defect, the Purchaser or its designee shall notify the Seller
thereof in writing
and request that the Seller correct or cure such Material Breach
or Material
Document Defect. Within 90 days of the earlier of discovery or
receipt of
written notice by the Seller that there has been a Material
Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution
Period"), the
Seller shall (i) cure such Material Breach or Material Document
Defect, as the
case may be, in all material respects or (ii) repurchase each
affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in
accordance with the terms hereof and the terms of the Pooling
and Servicing
Agreement; provided that if the Seller certifies in writing to
the Purchaser (i)
that any such Material Breach or Material Document Defect, as
the case may be,
does not and will not cause the Defective Mortgage Loan, to fail
to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the REMIC
Provisions, (ii) that such Material Breach or Material Document
Defect, as the
case may be, is capable of being corrected or cured but not
within the
applicable Initial Resolution Period, (iii) that the Seller has
commenced and is
diligently proceeding with the cure of such Material Breach or
Material Document
Defect, as the case may be, within the applicable Initial
Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or
Material Document
Defect, as the case may be, will be corrected or cured within an
additional
period not to exceed the Resolution Extension Period (as defined
below), then
the Seller shall have an additional period equal to the
applicable Resolution
Extension Period to complete such correction or cure or, failing
such, to
repurchase the Defective Mortgage Loan; and provided, further,
that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as
a result of a
Material Breach or Material Document Defect arises within the
three-month period
commencing on the Closing Date (or within the two-year period
commencing on the
Closing Date if the Defective Mortgage Loan is a "defective
obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulation
Section 1.860G-2(f)), the Seller may, at its option, in lieu of
repurchasing
such Defective Mortgage Loan (except in the case of the FM
Component Mortgage
Loan, the SM Component Mortgage Loan and the LM Component
Mortgage Loan) (but,
in any event, no later than such repurchase would have to have
been completed),
(i) replace such Defective Mortgage Loan with one or more
substitute mortgage
loans that individually and collectively satisfy the
requirements of the
definition of "Qualifying Substitute Mortgage Loan" set forth in
the Pooling and
Servicing Agreement, and (ii) pay any corresponding Substitution
Shortfall
Amount, such substitution and payment to be effected in
accordance with the
terms of the Pooling and Servicing Agreement. Any such
repurchase or replacement
of a Defective Mortgage Loan shall be on a whole loan basis. The
Seller shall
have no obligation to monitor the Mortgage Loans regarding the
existence of a
Material Breach or Material Document Defect, but if the Seller
discovers a
Material Breach or Material Document Defect with respect to a
Mortgage Loan, it
will notify the Purchaser. For purposes of remediating a
Material Breach or
Material Document Defect with respect to any Mortgage Loan,
"Resolution
Extension Period" shall mean the 90-day period following the end
of the
applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or
Document Defect, then,
for purposes of (i) determining whether such Breach or Document
Defect is a
Material Breach or Material Document Defect, as the case may be,
and (ii) the
application of remedies, such Cross-Collateralized Group shall
be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such
Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a
portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from
the other
Mortgaged Properties) and (z) the applicable Material Breach or
Material
Document Defect does not constitute a Material Breach or
Material Document
Defect, as the case may be, as to any related
Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included
in such portfolio
(without regard to this paragraph), then the applicable Material
Breach or
Material Document Defect (as the case may be) will be deemed to
constitute a
Material Breach or Material Document Defect (as the case may be)
as to any
related Crossed-Collateralized Mortgage Loan and to each other
Mortgaged
Property included in such portfolio and the Seller shall
repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan
or Mortgage Loan
in the manner described above unless, in the case of a Material
Breach or
Material Document Defect, both of the following conditions would
be satisfied if
the Seller were to repurchase or substitute for only the
affected
Crossed-Collateralized Mortgage Loans or affected Mortgaged
Properties as to
which a Material Breach or Material Document Defect had occurred
without regard
to this paragraph: (i) the debt service coverage ratio for any
remaining
Cross-Collateralized Mortgage Loans or Mortgaged Properties for
the four
calendar quarters immediately preceding the repurchase or
substitution is not
less than the greater of (a) the debt service coverage ratio
immediately prior
to the repurchase, and (b) 1.25x and (ii) the loan-to-value
ratio for any
remaining Crossed-Collateralized Mortgage Loans or Mortgaged
Properties is not
greater than the lesser of (a) the loan-to-value ratio
immediately prior to the
repurchase, and (b) 75%. In the event that both of the
conditions set forth in
the preceding sentence would be satisfied, the Seller may elect
either to
repurchase or substitute for only the affected
Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or
Material
Document Defect exists or to repurchase or substitute for the
aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the related Mortgage Loan Seller repurchases
or
substitutes for an affected Cross-Collateralized Mortgage Loan
or Mortgaged
Property in the manner prescribed above while the Trustee
continues to hold any
related Cross-Collateralized Mortgage Loans or Mortgaged
Property, the Seller
and the Purchaser agree to uncross the repurchased
Cross-Collateralized Mortgage
Loan or affected property; provided the Purchaser has received a
tax opinion
that uncrossing the repurchased Cross-Collateralized Mortgage
Loan or Mortgaged
Property will not adversely affect the status of any of REMIC I,
REMIC II or the
Component Mortgage Loan REMIC as a REMIC under the Code.
Whenever one or more mortgage loans are substituted for a
Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller
shall (i) deliver
the related Mortgage File for each such substitute mortgage loan
to the
Purchaser or its designee, (ii) certify that such substitute
mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case
may be, all of
the requirements of the definition of "Qualifying Substitute
Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such
certification
to the Purchaser or its designee. No mortgage loan may be
substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if
the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage
Loan, in which
case, absent correction or cure, in all material respects, of
the relevant
Material Breach or Material Document Defect, the Defective
Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly
Payments due with
respect to each Replacement Mortgage Loan (if any) after the
related date of
substitution, and Monthly Payments due with respect to each
Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a
Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and
on or prior to
the related date of repurchase or replacement, shall belong to
the Purchaser and
its successors and assigns. Monthly Payments due with respect to
each
Replacement Mortgage Loan (if any) on or prior to the related
date of
substitution, and Monthly Payments due with respect to each
Defective Mortgage
Loan (if any) after the related date of repurchase or
replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced
as
contemplated by this Section 4, the Seller shall amend the
Mortgage Loan
Schedule attached to this Agreement to reflect the removal of
the Defective
Mortgage Loan and, if applicable, the substitution of the
related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the
Purchaser.
The Seller's obligation to cure any Material Breach or Material
Document
Defect or repurchase or substitute any affected Mortgage Loan or
Mortgaged
Property pursuant to this Section 4(c) constitute the sole
remedies available to
the Purchaser in connection with a breach of any of the Seller's
representations
and warranties contained in Section 4(b) and it is acknowledged
and agreed that
those representations and warranties are being made for risk
allocation purposes
only.
It shall be a condition to any repurchase or replacement of a
Defective
Mortgage Loan by the Seller pursuant to this Section 4(c) that
the Purchaser
shall have executed and delivered such instruments of transfer
or assignment
then presented to it by the Seller, in each case without
recourse, as shall be
necessary to vest in the Seller the legal and beneficial
ownership of such
Defective Mortgage Loan (including any property acquired in
respect thereof or
proceeds of any insurance policy with respect thereto ), to the
extent that such
ownership interest was transferred to the Purchaser
hereunder.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly
existing
and in good standing under the laws of the State of
Delaware.
(ii) No consent, approval, authorization or order of, or filing
or
registration with, any state or federal court or governmental
agency or
body is required for the consummation by the Purchaser of the
transactions
contemplated herein, except for those consents, approvals,
authorizations
and orders that previously have been obtained and those filings
and
registrations that previously have been completed, and except
for those
filings of Mortgage Loan documents and assignments thereof that
are
contemplated by the Pooling and Servicing Agreement to be
completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the
Purchaser,
and the performance and compliance with the terms of this
agreement by the
Purchaser, will not violate the Purchaser's certificate of
incorporation
or by-laws or constitute a default (or an event which, with
notice or
lapse of time, or both, would constitute a default) under, or
result in
the breach of, any material agreement or other instrument to
which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter
into
and consummate all transactions contemplated by this Agreement,
has duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution
and
delivery by the Seller, constitutes a valid, legal and binding
obligation
of the Purchaser, enforceable against the Purchaser in
accordance with the
terms hereof, subject to (A) applicable bankruptcy,
insolvency,
reorganization, moratorium and other laws affecting the
enforcement of
creditors' rights generally, and (B) general principles of
equity,
regardless of whether such enforcement is considered in a
proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution
and
delivery of this Agreement and its performance and compliance
with the
terms of this Agreement will not constitute a violation of, any
law, any
order or decree of any court or arbiter, or any order,
regulation or
demand of any federal, state or local governmental or
regulatory
authority, which violation, in the Purchaser's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the ability
of the Purchaser to perform its obligations under this Agreement
or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the
Purchaser
has received service of process or, to the Purchaser's
knowledge,
threatened against the Purchaser which would prohibit the
Purchaser from
entering into this Agreement or, in the Purchaser's good faith
and
reasonable judgment, is likely to materially and adversely
affect either
the ability of the Purchaser to perform its obligations under
this
Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker,
investment
banker, agent or other person, other than the Underwriters and
their
respective affiliates, that may be entitled to any commission
or
compensation in connection with the sale of the Mortgage Loans
or the
consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche
(the
"Accountants") in making available all information and taking
all steps
reasonably necessary to permit the Accountants to deliver the
letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall
be held at the offices of Cadwalader, Wickersham & Taft LLP,
227 West Trade
Street, Suite 2400, Charlotte, North Carolina 28202 at 10:00
a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following
conditions,
which can only be waived or modified by mutual consent of the
parties hereto.
(i) All of the representations and warranties of the Seller and
of
the Purchaser specified in Sections 4 and 5 hereof shall be true
and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement
(the
"Closing Documents"), in such forms as are agreed upon and
reasonably
acceptable to the Purchaser and Seller, shall be duly executed
and
delivered by all signatories as required pursuant to the
respective terms
thereof;
(iii) The Seller shall have delivered and released to the
Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have
received to
hold in trust pursuant to the Pooling and Servicing Agreement,
as the case
may be, all documents and funds required to be so delivered
pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) [Reserved];
(v) All other terms and conditions of this Agreement required to
be
complied with on or before the Closing Date shall have been
complied with,
and the Seller shall have the ability to comply with all terms
and
conditions and perform all duties and obligations required to be
complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or
agreed
to pay all fees, costs and expenses payable to the Purchaser or
otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance
with its
terms.
Both parties agree to use their commercially reasonable best
efforts
to perform their respective obligations hereunder in a manner
that will enable
the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and
can
only be waived and modified by mutual consent of the parties
hereto:
(b) This Agreement, duly executed and delivered by the Purchaser
and
the Seller, and the Pooling and Servicing Agreement, duly
executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer
of
the Seller, in his or her individual capacity, and dated the
Closing Date, upon
which the Underwriters, and BACM may rely, attaching thereto as
exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from
the
Comptroller of the Currency, dated not earlier than 30 days
prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive
officer or
authorized signatory of the Seller and dated the Closing Date,
and upon which
the Purchaser, the Underwriters and the Initial Purchasers may
rely to the
effect that (i) the representations and warranties of the Seller
in the
Agreement are true and correct in all material respects at and
as of the date
hereof with the same effect as if made on the date hereof, and
(ii) the Seller
has, in all material respects, complied with all the agreements
and satisfied
all the conditions on its part required under the Agreement to
be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to
such
reasonable assumptions and qualifications as may be requested by
counsel for the
Seller, each as reasonably acceptable to counsel for the
Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date
and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial
Purchasers, and each
Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance
of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the
respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the
date
of any 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 Bank of America, N.A., 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 to such other addresses as may
hereafter be furnished
to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to
Survive
Delivery.
All representations, warranties and agreements contained in
this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser or, at the direction of the Purchaser,
to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this
Agreement that is prohibited or which is held to be void or
unenforceable shall
be ineffective to the extent of such prohibition or
unenforceability without
invalidating the remaining provisions hereof. Any part,
provision,
representation, warranty or covenant of this Agreement that is
prohibited or
unenforceable or is held to be void or unenforceable in any
particular
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability
in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each
of which shall be deemed to be an original, but all of which
together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES (OTHER THAN
TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH
THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW YORK
AS THE
GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY
IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN
NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING
TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver
such
instruments and take such further actions as the other party
may, from time to
time, reasonably request in order to effectuate the purposes and
to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall
not be assigned by the Seller without the prior written consent
of the
Purchaser, except that any person into which the Seller may be
merged or
consolidated, or any corporation or other entity resulting from
any merger,
conversion or consolidation to which the Seller is a party, or
any person
succeeding to all or substantially all of the business of the
Seller, shall be
the successor to the Seller hereunder. In connection with its
transfer of the
Mortgage Loans to the Trust as contemplated by the recitals
hereto, the
Purchaser shall have the right to assign its rights and
obligations under this
Agreement to the Trustee for the benefit of the
Certificateholders. To the
extent of any such assignment, the Trustee or its designee
(including, without
limitation, the Special Servicer) shall be deemed to be the
Purchaser hereunder
with the right for the benefit of the Certificateholders to
enforce the
obligations of the Seller under this Agreement as contemplated
by Section 2.03
of the Pooling and Servicing Agreement. Subject to the
foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser, and their permitted successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or
modified
unless such waiver or modification is in writing and signed by a
duly authorized
officer of the party against whom such waiver or modification is
sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage
Loans.
The parties hereto intend that the conveyance by the Seller
agreed
to be made hereby shall be, and be construed as a sale by the
Seller of all of
the Seller's right, title and interest in and to the Mortgage
Loans. It is,
further, not intended that such conveyance be deemed a pledge of
the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other
obligation of the
Seller, as the case may be. However, in the event that
notwithstanding the
intent of the parties, the Mortgage Loans are held to be
property of the Seller,
or if for any reason this Agreement is held or deemed to create
a security
interest in the Mortgage Loans, then it is intended that, (i)
this Agreement
shall also be deemed to be a security agreement within the
meaning of Article 9
of the New York Uniform Commercial Code and the Uniform
Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided
for in this
Section shall be deemed to be a grant by the Seller to the
Purchaser of a
security interest in all of its right (including the power to
convey title
thereto), title and interest, whether now owned or hereafter
acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related 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. 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 21. 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 22. 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.
BANK OF AMERICA, N.A.
By: /s/ Stephen L. Hogue
------------------------------------
Name: Stephen L. Hogue
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Nidhi Kapila
------------------------------------
Name: Nidhi Kapila
Title: Vice President
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Sequence Number Loan Number Loan Seller Property Name
--------------- ----------- ---------------
---------------------------------------------------
<S> <C> <C> <C>
1 58620 Bank of America Fashion Show Mall
2 58745 Bank of America Southdale Mall
3 58376 Bank of America The Mall at Stonecrest
5 58455 Bank of America Indian River Mall & Commons
9 58638 Bank of America Lenox Marketplace
11 58764 Bank of America Bank of America Plaza - Las Vegas,
NV
14 58643 Bank of America Crowne Apartments
15 58478 Bank of America Tri-Star Estates Manufactured Housing
Community
17.1 58694 Bank of America Courtyard Marriott-Depot
17.2 58694 Bank of America Residence Inn-Depot
17.3 58694 Bank of America Parking Garage/Rink-Depot
17 58694 Bank of America CSM - Depot Properties (Roll Up)
19 58628 Bank of America American Express Building - 777
American Expressway
22 58585 Bank of America Davis Building and Metropolitan
Garage
24 58621 Bank of America American Express Building - 20022 North
31st Avenue
25 58438 Bank of America Griffin Gate Resort
26 58471 Bank of America 550 Broad Street
31 58660 Bank of America 7901 Stoneridge
32 58373 Bank of America Universal Music Group Warehouse
36 58646 Bank of America Cottonwood Corporate Center Building
9
39 11794 Bridger Highland Plantation Apartments
40 11740 Bridger Century Village Apartments-NV
41 58700 Bank of America CSM - Courtyard Marriott - Natick
42 58565 Bank of America Waterford Creek Apartments
43 58699 Bank of America CSM - Courtyard Marriott - Lloyd
Center
45 58741 Bank of America Chesapeake II
46 58742 Bank of America Chesapeake I
Sub-Total Crossed Loans
47.1 58469 Bank of America Masins on Main - Retail
47.2 58469 Bank of America Masins on Main - Multifamily
47 58469 Bank of America Masins on Main (Roll Up)
49 58642 Bank of America Bouquet Canyon Plaza II
51 11855 Bridger Homewood Suites Alexandria
52 58650 Bank of America Tarzana Springs
53 58597 Bank of America 149 New Montgomery Office Building
54 58635 Bank of America Glenbrooke Apartments
55 12487 Bridger Guardian Storage Center
56 12144 Bridger Valley York Apartments
57 58640 Bank of America Timber Chase at Sarasota Bay
58 58622 Bank of America American Express Building - 20002 North
19th Avenue
60 10721 Bridger Westview Heights
61 11663 Bridger Flamingo Self Storage
63 58651 Bank of America Williams Parkway Retail
66 9418 Bridger Burke Center Office
67 9415 Bridger Franklin Farms Office
Sub-Total Crossed Loans
69 58681 Bank of America Westlake Self Storage
70 10077 Bridger Thornton Park Office
71 58511 Bank of America Santa Clarita Medical
73 58674 Bank of America State & La Cumbre Center
77 11750 Bridger Country Club Apartments-Shreveport
78 58683 Bank of America Ballpark Self Storage
79 58636 Bank of America Marketplace Apartments
80 11737 Bridger Stevenson Ranch Shopping Center
81 58662 Bank of America Pleasanton Park
82 58609 Bank of America Evergreen Ridge Apartments
83 12610 Bridger Flamingo Courtyard Office
84 12713 Bridger Woodway Office
86 58704 Bank of America Sand Canyon Self Storage
87 58708 Bank of America Guardsman Self Storage
88 58648 Bank of America Village Square Shopping Center
90 9385 Bridger Lakeshore Pointe Apartments
91 58568 Bank of America CVS - North Attleboro
92 11200 Bridger Casa Del Sol
95 12084 Bridger Storage One Self Storage
96 58590 Bank of America Lake Ronkonkoma Stop & Shop
98 58680 Bank of America Torrance Self Storage
99 11790 Bridger Martin Self Storage Kissimmee
101.1 5833 Bridger Corporate East Office
101.2 5833 Bridger Landmark Mall
101 5833 Bridger Landmark Mall-Corporate East (Roll Up)
102 8771 Bridger Pointe West Apartments
103 11327 Bridger Park Place Apartments
104 12159 Bridger Richland Commons
105 58595 Bank of America Bonneville Building aka Harrison
Medical Complex
106 9759 Bridger Snoqualmie Ridge
108 58652 Bank of America Eastgate Plaza
109 12019 Bridger West Ridge MHC
110 9819 Bridger Hampton Inn Collierville
111 58541 Bank of America University Mall NM2 and NM3
112 11413 Bridger Lake Forest Professional Center
113 11526 Bridger Airport Road Industrial
114 11930 Bridger High Acres MHC and Fairdale MHC
115 58649 Bank of America CVS - New Britain, CT
116 11045 Bridger Stor America Self Storage
117 58687 Bank of America Walgreens - Sturgis, MI
118 58632 Bank of America Plaza Antonio Pad J
119 58547 Bank of America 675 Yellowstone Avenue
120 12543 Bridger Williamstowne Office
121 58707 Bank of America Guardian Self Storage - Vero Beach,
FL
122 12560 Bridger Snoqualmie Key Bank
123 11668 Bridger Greenbriar Apartments AL
124 12474 Bridger Chastaine Park Apts - AL
126 11896 Bridger Valley View Plaza
127 11165 Bridger Salem Food Lion
128 10569 Bridger Ballygar Apartments
129 11933 Bridger Stadium Center Retail
132 12040 Bridger Wellington Court Apartments
133 11670 Bridger Clough Corner Apartments
134 10851 Bridger Gilbert Court Apartments
135 12564 Bridger Mykawa Business Center
Totals/Weighted Average
<CAPTION>
Sequence Number Street Address City State
---------------
--------------------------------------------------------------------------
------------------------ -----
<S> <C> <C> <C>
1 3200 Las Vegas Boulevard South Las Vegas NV
2 6601 France Avenue Edina MN
3 2929 Turner Hill Road Lithonia GA
5 6200 20th Street Vero Beach FL
9 3535 Peachtree Road, NE Atlanta GA
11 300 S. 4th Street Las Vegas NV
14 3900/ 3801/ 3851 Galleria Woods Drive Hoover AL
15 43 East 5000 North Road Bourbonnais IL
17.1 225 South 3rd Avenue Minneapolis MN
17.2 425 South 2nd Street Minneapolis MN
17.3 225 South 3rd Avenue Minneapolis MN
17 Various Minneapolis MN
19 777 American Express Way Fort Lauderdale FL
22 1309 Main Street and 1310 Elm Street Dallas TX
24 20022 North 31st Avenue Phoenix AZ
25 1800 Newtown Pike Lexington KY
26 550 Broad Street Newark NJ
31 7901 Stoneridge Drive Pleasanton CA
32 9999 East 121st Street Fishers IN
36 2795 East Cottonwood Parkway Salt Lake City UT
39 5151 Highland Road Baton Rouge LA
40 4801 Spencer Street Las Vegas NV
41 342 Speen Street Natick MA
42 10
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