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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 December 16, 2004, 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
the
Mortgage Loans to a trust (the "Trust") created pursuant to the
Pooling and
Servicing Agreement (as defined below). Beneficial ownership of
the assets of
the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a
series of commercial mortgage pass-through certificates (the
"Certificates").
Certain classes of the Certificates will be rated by 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 December 1, 2004 (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 (the "Special
Servicer") and La
Salle 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"), Bear, Stearns & Co. Inc. ("Bear
Stearns") and Goldman,
Sachs & Co. ("Goldman Sachs" and collectively with BAS and
Bear Stearns, the
"Underwriters") pursuant to an underwriting agreement, dated as
of December 16,
2004 (the "Underwriting Agreement"). BACM intends to sell
certain of the
remaining Classes of Certificates (the "Non-Registered
Certificates") through
BAS, as placement agent thereof (the "Placement Agent"),
pursuant to a private
placement agency agreement dated as of December 16, 2004 (the
"Placement
Agreement"), between BAS and BACM. The Registered Certificates
are more fully
described in the prospectus dated December 16, 2004 (the "Basic
Prospectus"),
and the supplement to the Basic Prospectus dated December 16,
2004 (the
"Prospectus Supplement"; and, together with the Basic
Prospectus, the
"Prospectus"), as each may be amended or supplemented at any
time hereafter. The
Non-Registered Certificates are more fully described in the
private placement
memorandum dated December 16, 2004 (the "Memorandum"), as it may
be amended or
supplemented at any time hereafter.
The Seller will indemnify the Underwriters and certain
related
parties with respect to certain disclosure regarding the
Mortgage Loans and
contained in the Prospectus and certain other disclosure
documents and offering
materials relating to the Certificates, pursuant to an
indemnification
agreement, dated as of December 16, 2004 (the "Indemnification
Agreement"),
among the Seller, the Purchaser and the Underwriters.
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 December 22, 2004 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.
(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 (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 Beach,
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
December 23, 2004, 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 Placement 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
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 and the Underwriters 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 and the
Underwriters, dated the Closing Date and addressed to the
Purchaser, the
Underwriters, the Trustee and each Rating Agency 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 Placement
Agent 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, NC1-027-21-02, Charlotte, North Carolina
28255, Attention:
Nidhi Kapila, Vice President, with a copy to Paul E. Kurzeja,
Esq. at the same
address, telecopy number: (704) 386-1094, or such other address
as may hereafter
be furnished to the Seller in writing by the Purchaser; and if
to the Seller,
addressed to Bank of America, N.A., 214 North Tryon Street,
NC1-027-21-02,
Charlotte, North Carolina 28255, Attention: Stephen Hogue,
telecopy number:
(704) 386-3215, 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
this Agreement and
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/
----------------------------------
Name: Stephen L. Hogue
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By:/s/
----------------------------------
Name: Nidhi Kapila
Title: Vice President
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Sequence Loan Loan
Number Number Seller Property Name Street Address
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 58563 BOFA King's Crossing 2150 North Tenaya Way
2 58587 BOFA Barrington at Park Place 3220 Duval Road
3 58583 BOFA Legacy at Museum Park 465 West San Carlos
Street
4 58529 BOFA Stonebridge Apartments 4481 Stonecastle Drive
5 58564 BOFA Park Laureate Apartments 2050 Stony Brook Drive
6 58562 BOFA Wildwood Apartments 5877 Ross Road
7 58530 BOFA Colonial Pointe Apartments 2300 Econ Circle
8 58353 BOFA Lexington Hills Apartments 4116 Lexington Avenue
South
9 10798 BOFA Belmont Park Apartments 4300 18th Street West
10 9106 BOFA Parkland Apartments 3202 Southeast 92nd Avenue
11 11693 BOFA Gateway Apartments 9910 Northeast Glisan
Street
12 11393 BOFA Elk Meadows Apartments 2627 West Kilby Road
13 10441 BOFA Main Street Apartments 1209-1211 East Main
Street
14 58318 BOFA Steeplegate Mall 270 Loudon Road
15 58294 BOFA Simon - Upper Valley Mall 1475 Upper Valley
Pike
16.1 58112 BOFA Cupertino Village I 10821-10989 North Wolfe
Road
16.2 58112 BOFA Cupertino Village II 10765-10801 North Wolfe
Road
16.3 58112 BOFA Cupertino Village III 11111 North Wolfe Road
16 58112 BOFA Cupertino Village I, II & III (Roll Up)
Various
17 58586 BOFA Howe 'Bout Arden 2100 Arden Way
18 58414 BOFA Wal-Mart Supercenter - Douglasville 7001 Concourse
Parkway
19 9278 BOFA Gateway Shopping Center 4201-4251 Oceanside
Boulevard
20 58415 BOFA Wal-Mart Supercenter - Austell 1133 East-West
Connector
21 58466 BOFA Northridge Shopping Center 10141-10235 Reseda
Boulevard
22 58528 BOFA Gordon Square 5245-5327 Beach Boulevard
23 58477 BOFA Keyport Plaza 107 State Route 35
24 58160 BOFA Pacific Center-Gardena 1600 West Redondo Beach
Boulevard
25 58273 BOFA North Summit Square 200 Summit Square
Boulevard
26 58413 BOFA Sam's Club - Douglasville 6995 Concourse
Parkway
27 58543 BOFA Cypress Lake Shopping Center 7191 Cypress Lake
Drive
28 58545 BOFA The Shoppes at Golden Acres 9844 Little Road
29 58307 BOFA Rufe Snow Village Shopping Center 6238-6248 Rufe
Snow Drive
30 58524 BOFA Dana Plaza Shopping Center 4101-4115 Concord
Boulevard
31 58488 BOFA Sav-on Pasadena 727 South Arroyo Parkway
32 58390 BOFA Park Center Shopping 1011 Commerce Boulevard
33 58088 BOFA Brainerd Market Center 440 Greenway View Drive
34 58382 BOFA Rolling Meadows Retail 1401 West Algonquin
Road
35 58487 BOFA Sav-on Santa Fe Springs 11426 Washington
Boulevard
36 58546 BOFA Southwood Village Shopping Center 3551 Blair Stone
Road
37 58489 BOFA Sav-on Riverside 491 Alessandro Boulevard
38 9785 BOFA Walgreens - Brooklyn Park 2024 85th Avenue
North
39 58527 BOFA McComber Center 5402-5458 Beach Boulevard
40 58490 BOFA Santa Fe Springs Shopping Center 11400-11424
Washington Boulevard
41 58323 BOFA Springbrook Plaza 1012 North Springbrook Road
42 58499 BOFA Hillside Sedona 671 Highway 179
43 10830 BOFA Lincoln Park Retail Center 2603-2611 North Halsted
Street
44 10093 BOFA Fidalgo Square 1702-1720 Commercial Avenue
45 10164 BOFA Shops at Prairie Crossing 544 - 552 Randall
Road
46 9822 BOFA Sharpstown Plaza 7115-7149 Southwest Freeway
47 58484 BOFA Post Oak Central 1980, 1990 and 2000 Post Oak
Boulevard
48 58440 BOFA Monument IV at Worldgate 12900 Worldgate Drive
49 58427 BOFA Sepulveda Center 3415 South Sepulveda
Boulevard
50 58503 BOFA Veritas DGC Headquarters 10300 Town Park Drive
51 53054 BOFA Trinity Centre I 5870 Trinity Parkway
52 53224 BOFA Trinity Centre III 5885 Trinity Parkway
Sub-Total Crossed Loans
53 58452 BOFA Wells Fargo Home Mortgage Office Building 3480
Stateview Boulevard
54 58465 BOFA Calabasas Corporate Center 5230 Las Virgenes
Road
55 8932 BOFA West County Professional Building 14120-14180 Beach
Boulevard
56 58420 BOFA Medical Mutual of Ohio - Beachwood 23700 Commerce
Park Road
57 58398 BOFA The Awalt Building 208 North Market Street
58 58480 BOFA Baylor Medical Plaza 6435 South FM 549
59 58145 BOFA Atrium Northwood Office Complex 7301 Rivers
Avenue
60 10371 BOFA Bailey Plaza 200 Bailey Avenue
61 58147 BOFA One Wall Street 1100 Elm Street
62 10069 BOFA Bank of America Building- Lynnwood 3220 188th
Street Southwest
63 58437 BOFA Tustin Business Park and Self-Lock Mini Storage
1542-1652 Edinger Avenue, 15012-15102
Red Hill Avenue, 1541-15042 Park Way
Loop, and 1702 Moulton Parkway
64 58502 BOFA Georgia Pacific 13217 South Figueroa Street
65 58523 BOFA West Oak Self Storage 2505 Townsgate Road
66 58467 BOFA Coldwater Self Storage 7215 Coldwater Canyon
Avenue
67 10416 BOFA Martin Self Storage - Market Street 5811 Market
Street
68 58431 BOFA Shurgard - West Covina 2710 East Garvey Avenue
South
69 58483 BOFA Glen Allen/ Montpelier Self Storage 13104 Mountain
Road and 15066 Bethany
Church Road
70 58451 BOFA Guardian Self Storage 2845 West King Street
71 11273 BOFA Stoway Mini Storage 2172 Wyandotte Street
72 58450 BOFA Rockledge Self Storage 1759 Huntington Lane and
434-446 Richard Road
73 58316 BOFA Zeman Portfolio - Forest Hills Village 5041
Boulder Avenue
74 58265 BOFA Zeman Portfolio - Hollywood Estates 144 Hollywood
Boulevard
75 10437 BOFA Warren Dunes MHC 11159 Red Arrow Highway
76 10432 BOFA Hampton Inn - Alexandria 4800 Leesburg Pike
77 58500 BOFA Hampton Inn - Tallahassee 2979 Apalachee
Parkway
78 9935 BOFA Fairfield Suites Jupiter 6748 West Indiantown
Road
79 57800 BOFA Jefferson at Providence Place Ground Lease 1000
Providence Place
-----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Sequence Mortgage Amortization Original
Number City State Zip Code Rate (%) Basis Balance
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<C>
1 Las Vegas NV 89128 4.952% ACT/360 $28,300,000
2 Austin TX 78759 4.875% ACT/360 21,500,000
3 San Jose CA 95110 5.050% ACT/360 18,900,000
4 Dayton OH 45440 4.755% ACT/360 14,200,000
5 Louisville KY 40220 4.710% ACT/360 13,300,000
6 Fairfield OH 45014 4.835% ACT/360 12,000,000
7 Orlando FL 32817 4.958% ACT/360 11,200,000
8 Eagan MN 55123 4.800% ACT/360 10,720,000
9 Bradenton FL 34205 5.471% ACT/360 6,000,000
10 Portland OR 97266 5.613% ACT/360 4,200,000
11 Portland OR 97220 5.327% ACT/360 3,200,000
12 Park City UT 84098 5.452% ACT/360 2,950,000
13 Richmond VA 23219 5.400% ACT/360 2,300,000
14 Concord NH 03301 4.747% ACT/360 68,250,000
15 Springfield OH 45504 5.890% ACT/360 47,903,549
16.1 Cupertino CA 95014 31,020,408
16.2 Cupertino CA 95014 4,071,429
16.3 Cupertino CA 95014 2,908,163
16 Cupertino CA 95014 5.807% ACT/360 38,000,000
17 Sacramento CA 95825 5.255% ACT/360 24,800,000
18 Douglasville GA 30134 5.235% ACT/360 18,580,000
19 Oceanside CA 92056 5.208% ACT/360 18,000,000
20 Austell GA 30106 5.235% ACT/360 17,900,000
21 Los Angeles CA 91324 5.300% ACT/360 15,200,000
22 Buena Park CA 90621 5.241% ACT/360 15,000,000
23 Keyport NJ 07735 5.500% ACT/360 13,200,000
24 Gardena CA 90247 5.402% ACT/360 12,705,000
25 Winston Salem NC 27105 6.086% ACT/360 11,520,000
26 Douglasville GA 30134 5.240% ACT/360 11,220,000
27 Fort Myers FL 33907 5.403% ACT/360 8,500,000
28 New Port Richey FL 34654 4.682% 30/360 7,098,000
29 North Richland Hills TX 76148 5.751% ACT/360 6,600,000
30 Concord CA 94519 5.267% ACT/360 6,400,000
31 Pasadena CA 91105 5.349% ACT/360 5,900,000
32 Dickson City PA 18519 6.000% ACT/360 5,800,000
33 Chattanooga TN 37411 5.300% ACT/360 5,600,000
34 Rolling Meadows IL 60008 5.500% ACT/360 5,300,000
35 Santa Fe Springs CA 90606 5.349% ACT/360 5,100,000
36 Tallahassee FL 32301 4.685% 30/360 4,994,000
37 Riverside CA 92508 5.349% ACT/360 4,950,000
38 Brooklyn Park MN 55444 5.960% ACT/360 4,000,000
39 Buena Park CA 90621 5.241% ACT/360 3,750,000
40 Santa Fe Springs CA 90606 5.272% ACT/360 3,500,000
41 Newberg OR 97132 5.609% ACT/360 3,500,000
42 Sedona AZ 86336 5.080% ACT/360 3,000,000
43 Chicago IL 60614 5.900% ACT/360 2,250,000
44 Anacortes WA 98221 5.968% ACT/360 2,150,000
45 South Elgin IL 60177 5.750% ACT/360 2,100,000
46 Houston TX 77074 5.450% ACT/360 1,807,500
47 Houston TX 77056 4.976% ACT/360 97,504,000
48 Herndon VA 20170 5.289% ACT/360 38,000,000
49 Los Angeles CA 90034 5.470% ACT/360 28,000,000
50 Houston TX 77072 5.410% ACT/360 23,910,000
51 Centreville VA 20120 6.500% ACT/360 22,200,000
52 Centreville VA 20120 6.500% ACT/360 13,575,000
35,775,000
53 Fort Mill SC 29715 5.373% ACT/360 20,300,000
54 Calabasas CA 91302 5.485% ACT/360 12,150,000
55 Westminster CA 92683 6.199% ACT/360 7,250,000
56 Beachwood OH 44122 5.667% ACT/360 6,616,000
57 Dallas TX 75202 5.750% ACT/360 6,200,000
58 Heath TX 75032 5.162% ACT/360 5,625,000
59 North Charleston SC 29406 6.340% ACT/360 5,600,000
60 Fort Worth TX 76107 5.800% ACT/360 3,412,500
61 Manchester NH 03101 5.500% ACT/360 3,200,000
62 Lynnwood WA 98037 5.800% ACT/360 2,300,000
63 Tustin CA 92780 5.669% ACT/360 18,000,000
64 Los Angeles CA 90061 5.405% ACT/360 5,920,000
65 Thousand Oaks CA 91361 5.293% ACT/360 7,500,000
66 North Hollywood CA 91605 5.457% ACT/360 5,750,000
67 Wilmington NC 28405 5.900% ACT/360 3,963,634
68 West Covina CA 91791 5.120% ACT/360 3,950,000
69 Glen Allen and Montpelier VA 23059/23192 5.595% ACT/360
3,000,000
70 Cocoa FL 32926 5.635% ACT/360 2,760,000
71 Mountain View CA 94043 5.700% ACT/360 2,700,000
72 Rockledge FL 32955 5.635% ACT/360 2,000,000
73 Loves Park IL 61111 5.375% ACT/360 18,450,000
74 Anderson IN 46016 5.521% ACT/360 4,720,000
75 Bridgman MI 49106 5.750% ACT/360 3,000,000
76 Alexandria VA 22302 6.350% ACT/360 9,100,000
77 Tallahassee FL 32301 6.040% ACT/360 5,000,000
78 Jupiter FL 33458 5.730% ACT/360 4,500,000
79 Providence RI 02903 5.235% ACT/360 9,000,000
---------------------------------------------------------------------------------------------------------------------
<CAPTION>
Remaining
Term To Primary
Stated Stated Servicing
Sequence Cut-off Maturity Maturity Monthly Administrative
Fee
Number Balance (months) Date Due Date Payment Fee Rate
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<C> <C>
1 $28,300,000 84 12/1/2011 1st $151,091 0.122% 0.100%
2 21,500,000 60 12/1/2009 1st 0 0.122% 0.100%
3 18,900,000 61 1/1/2010 1st 0 0.122% 0.100%
4 14,182,151 59 11/1/2009 1st 74,117 0.122% 0.100%
5 13,300,000 60 12/1/2009 1st 0 0.122% 0.100%
6 12,000,000 60 12/1/2009 1st 63,214 0.122% 0.100%
7 11,186,438 119 11/1/2014 1st 59,837 0.122% 0.100%
8 10,720,000 58 10/1/2009 1st 56,244 0.122% 0.100%
9 6,000,000 82 10/1/2011 1st 33,958 0.082% 0.060%
10 4,200,000 118 10/1/2014 1st 24,146 0.072% 0.050%
11 3,200,000 120 12/1/2014 1st 17,823 0.072% 0.050%
12 2,946,741 59 11/1/2009 1st 16,661 0.102% 0.080%
13 2,295,205 118 10/1/2014 1st 12,915 0.102% 0.080%
14 67,935,229 56 8/1/2009 1st 352,818 0.042% 0.020%
15 47,903,549 115 7/1/2014 1st 283,827 0.042% 0.020%
16.1 31,020,408
16.2 4,071,429
16.3 2,908,163
16 38,000,000 115 7/1/2014 1st 226,013 0.122% 0.100%
17 24,800,000 120 12/1/2014 1st 137,023 0.122% 0.100%
18 18,518,315 81 9/1/2011 1st 102,427 0.122% 0.100%
19 18,000,000 120 12/1/2014 1st 98,929 0.082% 0.060%
20 17,840,573 81 9/1/2011 1st 98,678 0.122% 0.100%
21 15,182,727 119 11/1/2014 1st 84,406 0.122% 0.100%
22 15,000,000 120 12/1/2014 1st 82,747 0.122% 0.100%
23 13,173,063 118 10/1/2014 1st 74,948 0.122% 0.100%
24 12,705,000 120 12/1/2014 1st 71,358 0.122% 0.100%
25 11,478,463 116 8/1/2014 1st 69,706 0.122% 0.100%
26 11,182,788 81 9/1/2011 1st 61,888 0.122% 0.100%
27 8,500,000 120 12/1/2014 1st 47,746 0.122% 0.100%
28 7,098,000 84 12/1/2011 1st 0 0.122% 0.100%
29 6,600,000 117 9/1/2014 1st 38,520 0.122% 0.100%
30 6,400,000 120 12/1/2014 1st 35,408 0.122% 0.100%
31 5,893,357 119 11/1/2014 1st 32,943 0.122% 0.100%
32 5,789,395 118 10/1/2014 1st 34,774 0.122% 0.100%
33 5,588,073 118 10/1/2014 1st 31,097 0.122% 0.100%
34 5,294,199 119 11/1/2014 1st 30,093 0.122% 0.100%
35 5,094,257 119 11/1/2014 1st 28,476 0.122% 0.100%
36 4,994,000 84 12/1/2011 1st 0 0.122% 0.100%
37 4,944,426 119 11/1/2014 1st 27,638 0.122% 0.100%
38 3,988,567 117 9/1/2014 1st 23,879 0.072% 0.050%
39 3,750,000 120 12/1/2014 1st 20,687 0.122% 0.100%
40 3,496,002 119 11/1/2014 1st 19,375 0.122% 0.100%
41 3,475,607 178 10/1/2019 1st 28,801 0.122% 0.100%
42 3,000,000 118 10/1/2014 1st 0 0.122% 0.100%
43 2,245,793 118 10/1/2014 1st 13,346 0.072% 0.050%
44 2,146,041 118 10/1/2014 1st 12,846 0.072% 0.050%
45 2,095,941 118 10/1/2014 1st 12,255 0.072% 0.050%
46 1,802,089 58 10/1/2009 1st 11,046 0.072% 0.050%
47 97,504,000 84 12/1/2011 1st 0 0.042% 0.020%
48 38,000,000 81 9/1/2011 1st 210,756 0.122% 0.100%
49 28,000,000 118 10/1/2014 1st 158,454 0.122% 0.100%
50 23,910,000 130 10/1/2015 1st 134,411 0.122% 0.100%
51 21,650,321 92 8/1/2012 1st 140,319 0.122% 0.100%
52 13,238,879 92 8/1/2012 1st 85,803 0.122% 0.100%
34,889,200
53 20,300,000 113 5/1/2014 1st 113,649 0.122% 0.100%
54 12,125,126 120 12/1/2014 1st 68,872 0.122% 0.100%
55 7,237,325 118 10/1/2014 1st 44,399 0.082% 0.060%
56 6,602,979 118 10/1/2014 1st 38,261 0.122% 0.100%
57 6,181,481 117 9/1/2014 1st 36,182 0.122% 0.100%
58 5,618,441 59 11/1/2009 1st 30,756 0.122% 0.100%
59 5,580,938 116 8/1/2014 1st 34,809 0.122% 0.100%
60 3,402,413 117 9/1/2014 1st 20,023 0.072% 0.050%
61 3,183,809 55 7/1/2009 1st 18,169 0.092% 0.070%
62 2,297,621 119 11/1/2014 1st 13,495 0.072% 0.050%
63 17,980,916 119 11/1/2014 1st 104,119 0.122% 0.100%
64 5,920,000 120 12/1/2014 1st 33,261 0.122% 0.100%
65 7,500,000 119 11/1/2014 1st 41,615 0.122% 0.100%
66 5,740,986 119 11/1/2014 1st 35,163 0.122% 0.100%
67 3,955,683 117 9/1/2014 1st 23,534 0.102% 0.080%
68 3,950,000 120 12/1/2014 1st 21,495 0.122% 0.100%
69 2,996,775 119 11/1/2014 1st 17,213 0.122% 0.100%
70 2,757,055 119 11/1/2014 1st 15,906 0.122% 0.100%
71 2,695,921 119 11/1/2014 1st 16,904 0.072% 0.050%
72 1,997,866 119 11/1/2014 1st 11,526 0.122% 0.100%
73 18,354,052 55 7/1/2009 1st 103,315 0.122% 0.100%
74 4,720,000 55 7/1/2009 1st 26,860 0.122% 0.100%
75 2,994,202 118 10/1/2014 1st 17,507 0.092% 0.070%
76 9,064,095 117 9/1/2014 1st 60,594 0.072% 0.050%
77 4,992,829 119 11/1/2014 1st 32,337 0.122% 0.100%
78 4,500,000 60 12/1/2009 1st 28,255 0.072% 0.050%
79 8,989,648 119 11/1/2014 1st 49,615 0.122% 0.100%
------------------------------------------------------------------------------------------------------------------------------------
Totals/Weighted
Average $956,589,348
------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Master
Servicing Original
Sequence Fee Ownership Amortization
Number Rate Interest Crossed (months) ARD Loan Grace Period
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<C>
1 0.020% Fee No 360 No 5
2 0.020% Fee No 0 No 5
3 0.020% Fee No 0 Yes 10
4 0.020% Fee No 360 No 10
5 0.020% Fee No 0 Yes 5
6 0.020% Fee No 360 No 10
7 0.020% Fee No 360 No 10
8 0.020% Fee No 360 No 5
9 0.020% Fee/Leasehold No 360 No 5
10 0.020% Fee No 360 No 5
11 0.020% Fee No 360 No 5
12 0.020% Fee No 360 No 5
13 0.020% Fee No 360 No 5
14 0.020% Fee No 360 No 10
15 0.020% Fee No 360 No 5
16.1 No
16.2 No
16.3 No
16 0.020% Fee No 348 No 10
17 0.020% Fee No 360 No 5
18 0.020% Fee No 360 Yes 5
19 0.020% Fee No 360 No 5
20 0.020% Fee No 360 Yes 5
21 0.020% Fee No 360 No 5
22 0.020% Fee No 360 No 5
23 0.020% Fee No 360 No 10
24 0.020% Fee No 360 No 5
25 0.020% Fee No 360 No 15
26 0.020% Fee No 360 Yes 5
27 0.020% Fee No 360 No 5
28 0.020% Fee No 0 No 5
29 0.020% Fee No 360 No 5
30 0.020% Fee No 360 No 5
31 0.020% Fee No 360 No 5
32 0.020% Fee No 360 No 5
33 0.020% Fee No 360 No 10
34 0.020% Fee No 360 No 5
35 0.020% Fee No 360 No 5
36 0.020% Fee No 0 No 5
37 0.020% Fee No 360 No 5
38 0.020% Fee No 360 No 5
39 0.020% Fee No 360 No 5
40 0.020% Fee No 360 No 5
41 0.020% Fee No 180 No 5
42 0.020% Fee No 0 No 5
43 0.020% Fee No 360 No 5
44 0.020% Fee No 360 No 5
45 0.020% Fee No 360 No 5
46 0.020% Fee No 300 No 5
47 0.020% Fee No 0 No 0
48 0.020% Fee No 360 No 10
49 0.020% Fee No 360 No 5
50 0.020% Fee No 360 No 10
51 0.020% Fee Yes(BACM 04-6-C) 360 No 0
52 0.020% Fee Yes(BACM 04-6-C) 360 No 0
53 0.020% Fee No 360 No 10
54 0.020% Fee No 360 No 5
55 0.020% Fee No 360 No 5
56 0.020% Fee No 360 No 5
57 0.020% Fee No 360 No 5
58 0.020% Fee No 360 No 5
59 0.020% Fee No 360 No 5
60 0.020% Fee No 360 No 5
61 0.020% Fee No 360 No 10
62 0.020% Fee No 360 No 5
63 0.020% Leasehold No 360 No 5
64 0.020% Fee No 360 No 5
65 0.020% Fee No 360 No 5
66 0.020% Fee No 300 No 5
67 0.020% Fee No 359 No 5
68 0.020% Fee No 360 No 5
69 0.020% Fee/Leasehold No 360 No 5
70 0.020% Fee No 360 No 5
71 0.020% Fee No 300 No 5
72 0.020% Fee No 360 No 5
73 0.020% Fee No 360 No 0
74 0.020% Fee No 360 No 0
75 0.020% Fee No 360 No 5
76 0.020% Fee No 300 No 5
77 0.020% Fee No 300 No 5
78 0.020% Fee No 300 No 5
79 0.020% Fee No 360 No 10
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the
phrases
"to the knowledge of the Seller" or "to the Seller's knowledge"
shall mean,
except where otherwise expressly set forth below, the actual
state of knowledge
of the Seller or any servicer acting on its behalf regarding the
matters
referred to (i) after having conducted such inquiry and due
diligence into such
matters as would be customarily performed by prudent
institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the
origination of
the particular Mortgage Loan and (ii) subsequent to such
origination, utilizing
the servicing and monitoring practices customarily utilized by
prudent
commercial mortgage loan servicers with respect to securitizable
commercial or
multifamily, as applicable, mortgage loans, and the Seller shall
have made
prudent inquiries of related servicers, and the phrases "to the
actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean,
except where
otherwise expressly set forth below, the actual state of
knowledge of the Seller
without any express or implied obligation to make inquiry. All
information
contained in documents which are part of or required to be part
of a Mortgage
File (each such document, a "Loan Document") shall be deemed to
be within the
knowledge and the actual knowledge of the Seller. Wherever there
is a reference
to receipt by, or possession of, the Seller of any information
or documents, or
to any action taken by the Seller or not taken by the Seller or
its agents or
employees, such reference shall include the receipt or
possession of such
information or documents by, or the taking of such action or not
taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each
Mortgage
Loan that, as of the date specified below or, if no such date is
specified, as
of the
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