EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is
dated and effective as of June 28, 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 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 Moody's Investors
Service, Inc. (together, the "Rating
Agencies"). Certain classes of the
Certificates (the "Registered
Certificates") will be registered under the
Securities Act of 1933, as amended (the
"Securities Act"). The Trust will be
created and the Certificates will be issued
pursuant to a pooling and servicing
agreement to be dated as of June 1, 2005
(the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank
of America, as master servicer (the
"Master Servicer"), Midland Loan Services,
Inc., as special servicer (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 Deutsche
Bank Securities Inc. ("Deutsche" and,
collectively with BAS and Bear Stearns,
the "Underwriters") pursuant to an
underwriting agreement, dated as of June 15,
2005 (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
June 15, 2005 (the "Placement
Agreement"), between BAS and BACM. The
Registered Certificates are more fully
described in the prospectus dated June 15,
2005 (the "Basic Prospectus"), and
the supplement to the Basic Prospectus
dated June 15, 2005 (the "Prospectus
Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time
hereafter. The Non-Registered
Certificates are more fully described in
the two private placement memoranda,
each dated June 15, 2005 (the "Memoranda"),
as each 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 June 28, 2005 (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 June 28, 2005 in immediately
available funds. The Purchaser shall be
entitled to all interest accrued on the
Mortgage Loans on and after the Cut-off
Date and all principal payments received on
the Mortgage Loans after the Cut-off
Date except for principal and interest
payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which
shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
purchase price referred to in Section 1
hereof and satisfaction of the other
conditions set forth herein, the Seller
will transfer, assign, set over and
otherwise convey to the Purchaser, without
recourse, but subject to the terms
and conditions of this Agreement, all the
right, title and interest of the
Seller in and to the Mortgage Loans (other
than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on
the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal
and interest collected thereon after
the Cut-off Date (other than scheduled
payments of principal and interest due on
the Mortgage Loans on or before the Cut-off
Date and collected after the Cut-off
Date, which shall belong and be promptly
remitted to the Seller).
(c) On or
before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling
and Servicing Agreement, the Seller
shall deliver or cause to be delivered to
the Purchaser or, if so directed by
the Purchaser, to the Trustee or a
custodian designated by the Trustee (a
"Custodian"), the documents, instruments
and agreements required to be delivered
by the Purchaser to the Trustee under
Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements
of such Section 2.01, and such other
documents, instruments and agreements as
the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the
Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the
Closing Date will be held by the
Trustee in escrow at all times prior to the
Closing Date. Each Mortgage File
shall contain the documents set forth in
the definition of Mortgage File under
the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of
any
original Mortgage Note, it may deliver a
copy of such Mortgage Note, together
with a lost note affidavit, and indemnity,
and shall thereby be deemed to have
satisfied the document delivery
requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be
delivered, as to any Mortgage Loan, the
original or a copy of any of the documents
and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x)
of the definition of "Mortgage File"
in the Pooling and Servicing Agreement,
with evidence of recording or filing (if
applicable, and as the case may be)
thereon, solely because of a delay caused by
the public recording or filing office where
such document or instrument has been
delivered for recordation or filing, as the
case may be, so long as a copy of
such document or instrument, certified by
the Seller as being a copy of the
document deposited for recording or filing,
has been delivered, and then subject
to the requirements of Section 4(d), the
delivery requirements of Section 2(c)
shall be deemed to have been satisfied as
to such missing item, and such missing
item shall be deemed to have been included
in the related Mortgage File. If the
Seller cannot or does not so deliver, or
cause to be delivered, as to any
Mortgage Loan, the original of any of the
documents and/or instruments referred
to in clauses (iv) and (v) of the
definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such
document or instrument has been delivered
for recording or filing, as the case may
be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall
be deemed to have been satisfied as
to such missing item, and such missing item
shall be deemed to have been
included in the related Mortgage File. If
the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan,
the Title Policy solely because such
policy has not yet been issued, the
delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such
missing item, and such missing item shall
be deemed to have been included in the
related Mortgage File, provided that the
Seller, shall have delivered to the Trustee
or a Custodian appointed thereby, on
or before the Closing Date, a binding
commitment for title insurance "marked-up"
at the closing of such Mortgage Loan
countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly
assigns to or at the direction of the
Depositor to the Trustee for the benefit of
the Certificateholders any and all
rights it may have with respect to
representations and warranties made by a
third party originator with respect to any
Mortgage Loan under the mortgage loan
purchase agreement between the Seller and
such third party originator that
originated such Mortgage Loan pursuant to
which the Seller originally acquired
such Mortgage Loan from such third party
originator.
(h) If and when the Seller is notified of or discovers any error
in
the Mortgage Loan Schedule attached to this
Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly
amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan
Schedule to the parties to the Pooling and
Servicing Agreement; provided, however,
that the correction or amendment of the
Mortgage Loan Schedule by itself shall not
be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and
for
federal income tax purposes, the Seller
will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the
Mortgage Loans to the Purchaser in
exchange for the consideration referred to
in Section 1 hereof. In connection
with the foregoing, the Seller shall cause
all of its records to reflect such
transfer as a sale (as opposed to a secured
loan).
SECTION 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of
the
Mortgage Files and Servicing Files for the
Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or
has failed to conduct any partial or
complete examination of such Mortgage Files
and/or Servicing Files shall not affect the
Purchaser's (or any other specified
beneficiary's) right to pursue any remedy
available hereunder for a breach of
the Seller's representations and warranties
set forth in Section 4, subject to
the terms and conditions of Section
4(c).
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby represents and warrants to and for the
benefit
of the Purchaser as of the Closing Date
that:
(i) The Seller is a national banking association, duly
authorized,
validly
existing and in good standing under the laws of the United
States
of
America.
(ii) The execution and delivery of this Agreement by the Seller,
and
the
performance of Seller's obligations under this Agreement, will
not
violate
the Seller's organizational documents or constitute a default
(or
an event
which, with notice or lapse of time, or both, would constitute
a
default)
under, or result in the breach of, any material agreement or
other
instrument to which it is a party or which is applicable to it
or
any of its
assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially
and
adversely
either the ability of the Seller to perform its obligations
under this
Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into
and
perform
its obligations under this Agreement, has duly authorized the
execution,
delivery and performance of this Agreement, and has duly
executed
and delivered this Agreement. (iv) This Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes
a
valid,
legal and binding obligation of the Seller, enforceable against
the
Seller in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium
and other
laws affecting the enforcement of creditors' rights generally
and (B)
general principles of equity, regardless of whether such
enforcement is considered in
a proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery
of this Agreement and its performance and compliance with the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Seller's good faith and reasonable
judgment,
is likely to affect materially and adversely either the ability
of the
Seller to perform its obligations under this Agreement or the
financial
condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has
received
service of process or, to the best of the Seller's knowledge,
threatened
against the Seller which if determined adversely to the Seller
would
prohibit the Seller from entering into this Agreement, or in
the
Seller's
good faith and reasonable judgment, would be likely to
materially
and
adversely affect either the ability of the Seller to perform
its
obligations under this Agreement or the financial condition of the
Seller.
(vii) No consent, approval, authorization or order of, or filing
or
registration with, any state or federal court or governmental
agency or
body is
required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals,
authorizations
and orders
that previously have been obtained and those filings and
registrations that previously have been completed, and except for
those
filings
and recordings of Mortgage Loan documents and assignments
thereof
that are
contemplated by the Pooling and Servicing Agreement to be
completed
after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any
exceptions thereto listed on Schedule
IIA) to and for the benefit of the
Purchaser as of the Closing Date (or as of
such other dates specifically provided in
the particular representation and
warranty), with respect to (and solely with
respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall
notify the Seller thereof in writing
and request that the Seller correct or cure
such Material Breach or Material
Document Defect. Within 90 days of the
earlier of discovery or receipt of
written notice by the Seller that there has
been a Material Breach or a Material
Document Defect (such 90-day period, the
"Initial Resolution Period"), the
Seller shall (i) cure such Material Breach
or Material Document Defect, as the
case may be, in all material respects or
(ii) repurchase each affected Mortgage
Loan or REO Loan (each, a "Defective
Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof
and, if applicable, the terms of the
Pooling and Servicing Agreement, with
payment to be made in accordance with the
reasonable directions of the Purchaser;
provided that if the Seller certifies in
writing to the Purchaser (i) that, as
evidenced by an accompanying Opinion of
Counsel, any such Material Breach or
Material Document Defect, as the case may
be, does not and will not cause the
Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of
Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach
or Material Document Defect, as the
case may be, is capable of being corrected
or cured but not within the
applicable Initial Resolution Period, (iii)
that the Seller has commenced and is
diligently proceeding with the cure of such
Material Breach or Material Document
Defect, as the case may be, within the
applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such
Material Breach or Material Document
Defect, as the case may be, will be
corrected or cured within an additional
period not to exceed the Resolution
Extension Period (as defined below), then
the Seller shall have an additional period
equal to the applicable Resolution
Extension Period to complete such
correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and
provided, further, that, if the
Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect
arises within the three-month period
commencing on the Closing Date (or within
the two-year period commencing on the
Closing Date if the Defective Mortgage Loan
is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of
the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective
Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller
may, at its option, in lieu of
repurchasing such Defective Mortgage Loan
(except in the case of the CP
Component Mortgage Loan) (but, in any
event, no later than such repurchase would
have to have been completed), (i) replace
such Defective Mortgage Loan with one
or more substitute mortgage loans that
individually and collectively satisfy the
requirements of the definition of
"Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding
Substitution Shortfall Amount, such
substitution and payment to be effected in
accordance with the terms of the Pooling
and Servicing Agreement. Any such
repurchase or replacement of a Defective
Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller shall
have no obligation to monitor the
Mortgage Loans regarding the existence of a
Material Breach or Material Document
Defect, but if the Seller discovers a
Material Breach or Material Document
Defect with respect to a Mortgage Loan, it
will notify the Purchaser.
For purposes of this Section 4(c), "Resolution Extension
Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect
to
any Mortgage Loan, the
90-day period following the end of the applicable
Initial
Resolution Period;
(ii) for purposes of remediating a Material Document Defect
with
respect to
any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan
during, the
applicable
Initial Resolution Period, the period commencing at the end of
the
applicable Initial Resolution Period and ending on, and including,
the
earlier of (i) the 90th day
following the end of such Initial Resolution
Period and
(ii) the 45th day following receipt by the Seller of written
notice
from the Master Servicer or the Special Servicer of the
occurrence
of any
Servicing Transfer Event with respect to such Mortgage Loan
subsequent
to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect
with
respect to
any Mortgage Loan that is a not a Specially Serviced Loan as of
the
commencement of the applicable Initial Resolution Period, but as
to
which a
Servicing Transfer Event occurs during such Initial Resolution
Period,
the period commencing at the end of the applicable Initial
Resolution
Period and ending on, and including, the 90th day following
receipt by
the Seller of written notice from the Master Servicer or the
Special
Servicer of the occurrence of such Servicing Transfer Event;
and
(iv) for purposes of remediating a Material Document Defect
with
respect to
any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero
(-0-) days;
provided,
however, that if the Seller did not receive written notice from
the Master
Servicer or the Special Servicer of the relevant Servicing
Transfer
Event as of the commencement of the applicable Initial
Resolution
Period,
then such Servicing Transfer Event shall be deemed to have
occurred
during such Initial Resolution Period and the immediately
preceding
clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90
days
to cure such Material Document Defect or
Material 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
June 28,
2005, the Seller shall reconfirm its obligation to complete
such
Mortgage
File and to correct all deficiencies associated therewith, and,
if it
fails to do so within 45 days after its receipt of such notice,
the
Seller
shall deliver to the Purchaser or its designee a limited power
of
attorney
(in a form reasonably acceptable to the Seller and the
Purchaser)
permitting
the Purchaser or its designee to execute all endorsements
(without
recourse) and to execute and, to the extent contemplated by the
Pooling
and Servicing Agreement, record all instruments or transfer and
assignment
with respect to the subject Mortgage Loan, together with funds
reasonably
estimated by the Purchaser to be necessary to cover the costs
of such
recordation;
(iv) the Seller shall reimburse the Purchaser and all parties
under
the
Pooling and Servicing Agreement for any out-of-pocket costs and
expenses
resulting from the Seller's failure to deliver all documents
required
to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable
efforts
to
cooperate with the Purchaser and any parties under the Pooling
and
Servicing
Agreement in any remedial efforts for which a Document Defect
with
respect to such Mortgage File would otherwise cause a delay.
(e) [Reserved].
(f) With respect to any action taken concerning "due-on-sale" or
a
"due-on-encumbrance" clause as set forth in
Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any
fees or expenses related thereto,
including any fee charged by a Rating
Agency that is rendering a written
confirmation, to the extent that the
related Mortgage Loan documents do not
permit the lender to require payment of
such fees and expenses from the
Mortgagor and the Master Servicer or the
Special Servicer, as applicable, has
requested that the related Mortgagor pay
such fees and expenses and such
Mortgagor refuses to do so, shall be paid
by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller
that:
(i) The Purchaser is a corporation, duly organized, validly
existing
and in
good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing
or
registration with, any state or federal court or governmental
agency or
body is
required for the consummation by the Purchaser of the
transactions
contemplated herein, except for those consents, approvals,
authorizations
and orders
that previously have been obtained and those filings and
registrations that previously have been completed, and except for
those
filings of
Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed
after
the
Closing Date.
(iii) The execution and delivery of this Agreement by the
Purchaser,
and the
performance and compliance with the terms of this agreement by
the
Purchaser,
will not violate the Purchaser's certificate of incorporation
or by-laws
or constitute a default (or an event which, with notice or
lapse of
time, or both, would constitute a default) under, or result in
the breach
of, any material agreement or other instrument to which it is a
party or
which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter
into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized
the execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery
by the Seller, constitutes a valid, legal and binding
obligation
of the
Purchaser, enforceable against the Purchaser in accordance with
the
terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of
creditors'
rights generally, and (B) general principles of equity,
regardless
of whether such enforcement is considered in a proceeding in
equity or
at law.
(vi) The Purchaser is not in violation of, and its execution
and
delivery
of this Agreement and its performance and compliance with the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Purchaser's good faith and reasonable
judgment,
is likely to affect materially and adversely either the ability
of the
Purchaser to perform its obligations under this Agreement or
the
financial
condition of the Purchaser.
(vii) No litigation is pending with regard to which the
Purchaser
has
received service of process or, to the best of the Purchaser's
knowledge,
threatened against the Purchaser which would prohibit the
Purchaser
from entering into this Agreement or, in the Purchaser's good
faith and
reasonable judgment, is likely to materially and adversely
affect
either the ability of the Purchaser to perform its obligations
under this
Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker,
agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation
in
connection
with the sale of the Mortgage Loans or the consummation of any
of the
transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young, LLP
(the
"Accountants") in making available all
information and taking all steps
reasonably necessary to permit the
Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall
be held at the offices of Cadwalader,
Wickersham & Taft LLP, 227 West Trade
Street, Suite 2400, Charlotte, North
Carolina 28202 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following
conditions,
which can only be waived or modified by
mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and
of
the
Purchaser specified in Sections 4 and 5 hereof shall be true
and
correct as
of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement
(the
"Closing
Documents"), in such forms as are agreed upon and reasonably
acceptable
to the Purchaser and Seller, shall be duly executed and
delivered
by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the
Purchaser,
the
Trustee or a Custodian, or the Master Servicer shall have received
to
hold in
trust pursuant to the Pooling and Servicing Agreement, as the
case
may be,
all documents and funds required to be so delivered pursuant to
Sections
2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing
Files for the Mortgage Loans performed by or on behalf of the
Purchaser
pursuant to Section 3 hereof shall be satisfactory to the
Purchaser
in its reasonable determination;
(v) All other terms and conditions of this Agreement required to
be
complied
with on or before the Closing Date shall have been complied
with,
and the
Seller shall have the ability to comply with all terms and
conditions
and perform all duties and obligations required to be complied
with or
performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or
agreed
to pay all
fees, costs and expenses payable to the Purchaser or otherwise
pursuant
to this Agreement; and
(vii) Neither the 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 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 Placement
Agent 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 (with copies to Paul E. Kurzeja,
Esq., Assistant General Counsel, at Bank of
America Corporate Center, 100 North
Tryon Street, 20th Floor, Charlotte, North
Carolina 28255 and to Henry A.
LaBrun, Esq., Cadwalader, Wickersham &
Taft LLP, 227 West Trade Street, Suite
2400, Charlotte, North Carolina 28202), or
such other address as may hereafter
be furnished to the Seller in writing by
the Purchaser; if to the Seller,
addressed to 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 AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE
NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE
CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS
AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER
AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS
ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH
RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE
DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions
as the other party may, from time to
time, reasonably request in order to
effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall
not be assigned by the Seller without the
prior written consent of the
Purchaser, except that any person into
which the Seller may be merged or
consolidated, or any corporation or other
entity resulting from any merger,
conversion or consolidation to which the
Seller is a party, or any person
succeeding to all or substantially all of
the business of the Seller, shall be
the successor to the Seller hereunder. In
connection with its transfer of the
Mortgage Loans to the Trust as contemplated
by the recitals hereto, the
Purchaser shall have the right to assign
its rights and obligations under this
Agreement to the Trustee for the benefit of
the Certificateholders. To the
extent of any such assignment, the Trustee
or its designee (including, without
limitation, the Special Servicer) shall be
deemed to be the Purchaser hereunder
with the right for the benefit of the
Certificateholders to enforce the
obligations of the Seller under this
Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In
connection with the transfer of any
Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and
Servicing Agreement, the Trustee, for the
benefit of the Certificateholders, is
expressly authorized to assign its rights
and obligations under this Agreement,
in whole or in part, to the transferee of
such Mortgage Loan. To the extent of
any such assignment, such transferee shall
be deemed to be the Purchaser
hereunder (but solely with respect to such
Mortgage Loan that was transferred to
it). Subject to the foregoing, this
Agreement shall bind and inure to the
benefit of and be enforceable by the
Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or
modified
unless such waiver or modification is in
writing and signed by a duly authorized
officer of the party against whom such
waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller
agreed
to be made hereby shall be, and be
construed as a sale by the Seller of all of
the Seller's right, title and interest in
and to the Mortgage Loans. It is,
further, not intended that such conveyance
be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to
secure a debt or other obligation of the
Seller, as the case may be. However, in the
event that notwithstanding the
intent of the parties, the Mortgage Loans
are held to be property of the Seller,
or if for any reason this Agreement is held
or deemed to create a security
interest in the Mortgage Loans, then it is
intended that, (i) this Agreement
shall also be deemed to be a security
agreement within the meaning of Article 9
of the New York Uniform Commercial Code and
the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the
conveyance provided for in this
Section shall be deemed to be a grant by
the Seller to the Purchaser of a
security interest in all of its right
(including the power to convey title
thereto), title and interest, whether now
owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any
related insurance policies and all
other documents in the related Mortgage
Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance
with the terms thereof (other then
scheduled payments of interest and
principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion,
voluntary or involuntary, of the
foregoing into cash, instruments,
securities or other property, whether in the
form of cash, instruments, securities or
other property. The Seller and the
Purchaser shall, to the extent consistent
with this Agreement, take such actions
as may be necessary to ensure that, if this
Agreement were deemed to create a
security interest in the Mortgage Loans,
such security interest would be deemed
to be a perfected security interest of
first priority under applicable law and
will be maintained as such throughout the
term of this Agreement and the Pooling
and Servicing Agreement. In connection
herewith, the Purchaser shall have all of
the rights and remedies of a secured party
and creditor under the Uniform
Commercial Code as in force in the relevant
jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of
Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a
"Cross-Collateralized Group"), by
their terms, cross-defaulted and
cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan
Schedule. For purposes of reference,
the Mortgaged Property that relates or
corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the
property identified in the Mortgage
Loan Schedule as corresponding thereto. The
provisions of this Agreement,
including without limitation, each of the
representations and warranties set
forth in Schedule II hereto and each of the
capitalized terms used but not
defined herein but defined in the Pooling
and Servicing Agreement, shall be
interpreted in a manner consistent with
this Section 19. In addition, if there
exists with respect to any
Cross-Collateralized Group only one original of any
document referred to in the definition of
"Mortgage File" in the Pooling and
Servicing Agreement and covering all the
Mortgage Loans in such
Cross-Collateralized Group, then the
inclusion of the original of such document
in the Mortgage File for any of the
Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such
original in the Mortgage File for
each such Mortgage Loan.
"Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized
and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. 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 Hogue
--------------------------------------
Name: Stephen
Hogue
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Edward Vaccaro
--------------------------------------
Name: Edward
Vaccaro
Title: Vice President
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Sequence Loan Loan
Number Number Seller
Property Name
-------- ------ ------
-------------------------------------------------------------
<S>
<C> <C>
<C>
1
58620
BofA
Fashion
Show Mall
2
58921
BofA
NYU
Housing - 80 Lafayette Street
3.1 58611 BofA Canyon Ranch - Tucson,
AZ
3.2 58611 BofA Canyon Ranch - Lenox,
MA
3
58611
BofA
Canyon
Ranch (Roll Up)
4
58848
BofA
Regents
Square I & II
5
58470
BofA
Phoenix
Plaza I & II
6
58908
BofA
589 Fifth
Avenue
7
58623
BofA
American
Express Building - Minneapolis
8 58789 BofA Clark Office
Building
9
58868
BofA
Asian
Garden Mall
10
58665
BofA
TV Guide
Hollywood Center Office Building
11
58847
BofA
Mission
City Corporate Center
12
58886
BofA
Mountain
Farms Shopping Center
13.1 58449 BofA Captain's Portfolio -
Southwest Freeway
13.2 58449 BofA Captain's Portfolio -
Waller Creek
13.3 58449 BofA Captain's Portfolio -
Briar Hollow
13.4 58449 BofA Captain's Portfolio -
North Loop
13.5 58449 BofA Captain's Portfolio -
Westheimer Oaks Village Shopping Center
13.6 58449 BofA Captain's Portfolio -
Post Oak Place
13
58449
BofA
Captain's
Portfolio (Roll Up)
14
58711
BofA
OSI
Systems
15
58857
BofA
Atria
East
16
58626
BofA
American
Express Building - Salt Lake City
17
58797
BofA
The Grand
Rivage at Brandon Lakes
18
58852
BofA
Edward's
Multiplex-Fresno
19
58846
BofA
Cuyahoga
Falls Market Center
Sub Total Crossed Loans
20
13022
BofA
Keelers
Corner
21
58625
BofA
American
Express Building - Ontario
22
58830
BofA
Crossroads at Sunset
23
57938
BofA
Buena Park
Corporate Plaza
24
58812
BofA
Atkins
Kent MOB
25
58736
BofA
22 East
71st Street
26
58856
BofA
Villa Del
Mar
27
58861
BofA
Bank of
America West Building
28
58826
BofA
Capistrano
II Office Building
29
58661
BofA
The Great
Wall Mall
30
58855
BofA
Vail Club
Apartments
31
58934
BofA
Trop
Decatur Plaza
32
58824
BofA
Bridgecreek Office Building
33
12974
BofA
Coronado
Shopping Center- Santa Fe
34.1 58723 BofA Courtyard-Denver Park
Meadows
34.2 58723 BofA Residence Inn-Denver
Park Meadows
34
58723
BofA
CSM -
Denver Properties (Roll Up)
35
58831
BofA
Ocean
Dorado
36
58696
BofA
CSM -
Hilton Garden Inn - Scottsdale
37
58792
BofA
Germantown
(Triumph)
38
58870
BofA
Ths Shops
at Cascade & Fairburn
39
58802
BofA The Hesser Center
40
58941
BofA
Gateway
Tower
41
12547
BofA
Logan
Square Apartments
42
58761
BofA
Rancho San
Diego Industrial Center
43
58809
BofA
Lambert
Palm Business Center
44
58920 BofA Tanglewood Commons
45
58725
BofA
Smart Self
Storage
46
58727
BofA
Sorrento
Mesa
Sub Total Crossed Loans
47
12868
BofA
Gateway
Shopping Center - Arlington
48
58806
BofA
Eastridge
Office Center
49
58705
BofA
ASAP Self
Storage
50.1 58911 BofA Seligman CVS Pool #1 -
CVS-Bradenton
50.2 58911 BofA Seligman CVS Pool #1 -
CVS-Hudson
50
58911
BofA
Seligman
CVS Pool #1 (Roll Up)
51
12681
BofA
Fairfield
Inn & Suites Laredo
52
58873
BofA
110 and
120 Belmont Drive
53
58835
BofA
The Du
Barry Apartments
54
58939
BofA
Simi
Valley I & II
55
13106
BofA
Azar
Industrial
56
12034
BofA
Olde
Sarasota Self Storage
57
58782
BofA
Walgreens
- Garden City, MI
58
58748
BofA
Best
Florida Storage II
59
9753
BofA
Thrashers
Village
60
11355
BofA
Metro 502
Self Storage
61
58842
BofA
Havenhurst
Apartments
62
58430
BofA
Shurgard -
Woodland Hills
63
58433
BofA
Shurgard -
Palms
64
11969
BofA
Shurgard
Storage - Shoreline
65
58839
BofA
Barclay
Apartments
66
13159
BofA
Village
Plaza- Palmdale Refinance
67
58738
BofA
University
Glen Apartments
68
58832
BofA
Sir
Francis Drake Apartments
69
58759
BofA
105
Satellite Boulevard
70
58914
BofA
Makena
Great American Plaza
71
58726
BofA
Sorrento
Valley Self Storage
72
58589
BofA
Capital
Plaza Retail Center
73
58721
BofA
CVS -
North Andover
74
12551
BofA
Cedar East
& Cypress Office
75
58682
BofA
Vacaville
Town Center
76
12458
BofA
All Safe
Storage
77
58750
BofA
Walgreens
- Monroe, MI
78
10552
BofA
Packwood
Shopping Center
79
58658
BofA
Best Buy -
Gwinnett County
80
12165
BofA
Commons
San Angelo
81
58744
BofA
World Wide
Parts Building
82
11324
BofA
1st
Security Storage Christiansburg
83
12090
BofA
West Allis
Tech Center
84
9668
BofA
Silver
Star Self Storage
85
12909
BofA
Security
Plus Self Storage & RV
86
11847
BofA
U.S.
Storage Centers
Totals/Weighted Average
<CAPTION>
Sequence
Mortgage
Number
Street Address
City
State Zip
Code Rate
(%)
--------
-----------------------------------------------------------
------------------- ------- -------- --------
<S>
<C>
<C>
<C>
<C>
<C>
1
3200 Las Vegas
Boulevard South
Las Vegas
NV
89109 3.719%
2
80 Lafayette
Street
New York
NY
10013 5.510%
3.1 8600 East Rockcliff Road
Tucson
AZ
85750
3.2 165 Kemble Street
Lenox
MA
01240
3
Various
Various
Various
Various 5.937%
4
4250 & 4275
Executive Square
La Jolla
CA
92037 4.736%
5
2901, 2909 &
2929 North Central Avenue
Phoenix
AZ
85012 4.588%
6
589 Fifth Avenue
New York
NY
10017 5.482%
7
1001 North 3rd
Avenue South
Minneapolis
MN
55401 4.268%
8
7500 Old
Georgetown Road
Bethesda
MD
20814 5.037%
9
9200 Bolsa
Avenue, 15131 & 15041 Moran Street
Westminster
CA
92683 5.065%
10
6922 Hollywood
Boulevard
Los Angeles
CA
90028 5.578%
11
2355, 2365 &
2375 Northside Drive
San Diego
CA
92108 4.781%
12
337 Russell
Street
Hadley
MA
01035 5.070%
13.1 12603 Southwest Freeway
Stafford
TX
77477
13.2 507 Sabine Street
Austin
TX
78701
13.3 50 Briar Hollow Lane
Houston
TX
77027
13.4 1900 North Loop West
Houston
TX
77018
13.5 4304-4380 Westheimer Road
and 2400 Midlane Street
Houston
TX
77027
13.6 4543 Post Oak Place Drive
Houston
TX
77027
13
Various
Various
TX
Various 5.236%
14
22011 Southeast
51st Street and 5150 220th Avenue Southeast Issaquah
WA
98029 5.001%
15
990 Stewart
Avenue
Garden City
NY
11530 5.549%
16
4315 South 2700
West
Taylorsville
UT
84184 4.298%
17
2211 Grand Isle
Drive
Brandon
FL
33511 5.028%
18
7750 North
Blackstone Avenue
Fresno
CA
93720 4.818%
19
371-385 Howe
Avenue
Cuyahoga Falls
OH
44221 4.668%
20
4525-164th
Street Southwest
Lynnwood
WA
98037 5.311%
21
101 McNabb
Street
Markham
Ontario
L3R 4H8 4.298%
22
1425 West Sunset
Road
Henderson
NV
89014 5.186%
23
6301 Beach
Boulevard & 6280 Manchester Boulevard
Buena Park
CA
90621 5.638%
24
101 Old Short
Hills Road
West Orange
NJ
07052 5.210%
25
22 East 71st
Street
New York
NY
10021 5.689%
26
5203 Villa Del
Mar Avenue
Arlington
TX
76017 5.220%
27
6900 Westcliff
Drive
Las Vegas
NV
89145 5.410%
28
27121-27131
Calle Arroyo
San Juan Capistrano CA
92675 5.235%
29
18230 East
Valley Highway
Kent
WA
98032 5.227%
30
3839 Briargrove
Lane
Dallas
TX
75287 5.220%
31
5045 West
Tropicana Avenue
Las Vegas
NV
89103 5.693%
32
12752-12882
Valley View Street
Garden Grove
CA
92845 5.336%
33
504-540 Cordova
Road
Santa Fe
NM
87505 5.219%
34.1 8320 South Valley Highway
Englewood
CO
80112
34.2 8322 South Valley Highway
Englewood
CO
80112
34
Various
Englewood
CO
80112 5.580%
35
1830 - 1850
Ocean Avenue
San Francisco
CA
94112 5.186%
36
7324 East Indian
School Road
Scottsdale
AZ
85251 5.580%
37
19847 Century
Boulevard
Germantown
MD
20874 5.107%
38
3720, 3740
Cascade Road & 1195 Fairburn Road
Atlanta
GA
30331 5.253%
39
1 Sundial Avenue
Manchester
NH
03103 5.536%
40
One South
Memorial Drive
St. Louis
MO
63102 5.197%
41
715-865 West
Glenn Avenue
Auburn
AL
36832 5.575%
42
2500 Sweetwater
Spring Boulevard
Spring Valley
CA
91978 5.380%
43 601-655 South Palm Street
La Habra
CA
90631 5.125%
44
4150 Clemmons
Road
Clemmons
NC
27012 5.425%
45
537 Stevens
Avenue West
Solana Beach
CA
92075 5.167%
46
6690 Mira Mesa
Boulevard
San Diego
CA
92121 5.080%
47
3704-3818 172nd
Street Northeast
Arlington
WA
98223 5.211%
48
11811 and 11911
Northeast First Street
Bellevue
WA
98005 5.368%
49
17701 Summerlin
Road
Fort Myers
FL
33908 5.400%
50.1 6204 14th Street
Bradenton
FL
34207
50.2 12015 Little Road
Hudson
FL
34667
50
Various
Various
FL
Various 5.399%
51
700 West
Hillside Road
Laredo
TX
78041 5.695%
52
110 and 120
Belmont Drive
Somerset
NJ
08873 5.262%
53
3471 West 5th
Street
Los Angeles
CA
90020 5.211%
54
131 and 405
Cochran Street
Simi Valley
CA
93065 5.136%
55
100, 115, 126,
127 & 128 Roesler Road and 352 Addison Drive Glen Burnie
MD
21060 5.204%
56
4625 Clark Road
Sarasota
FL
34233 5.452%
57
31415 Ford Road
Garden City
MI
48135 5.925%
58
1201 North
Flagler Drive
Fort Lauderdale
FL
33304 5.735%
59
20804-20806
Bothell-Everett Highway
Bothell
WA
98021 5.543%
60
13271 Metro
Parkway
Fort Myers
FL
33912 5.702%
61
1861 Whitley
Avenue
Hollywood
CA
90028 5.213%
62
22222 Ventura
Boulevard
Woodland Hills
CA
91364 5.280%
63
3773 South
Durango Avenue
Los Angeles
CA
90034 5.220%
64
14540 Aurora
Avenue North
Shoreline
WA
98133 5.318%
65
706 South
Normandie Avenue
Los Angeles
CA
90005 5.220%
66
2311, 2321 and
2409 East Avenue South
Palmdale
CA
93550 5.728%
67
3504 - 73rd
Avenue West
University Place
WA
98466 5.303%
68
841 South
Serrano Avenue
Los Angeles
CA
90005 5.211%
69
105 Satellite
Boulevard
Suwanee
GA
30024 5.500%
70
14002 Beach
Boulevard
Westminster
CA
92683 5.693%
71
10531 Sorrento
Valley Road
San Diego
CA
92121 5.110%
72
11845 Retail
Drive
Wake Forest
NC
27587 4.366%
73
110 Turnpike
Street
North Andover MA
01845 5.780%
74
3117 and 3101
Poplarwood Court
Raleigh
NC
27604 5.577%
75
777 East Monte
Vista Avenue
Vacaville
CA
95688 5.261%
76
7720 Farley
Street
Overland Park
KS
66204 5.382%
77
1285 North
Monroe Street
Monroe
MI
48162 5.400%
78
4016-4022 South
Mooney Boulevard
Visalia
CA
93277 5.781%
79
1875 Pleasant
Hill Road
Duluth
GA
30096
5.100%
80
3204 and
3222-3298 Sherwood Way
San Angelo
TX
76901 5.587%
81
7821 Hayvenhurst
Avenue
Van Nuys
CA
91406 5.437%
82
5 Midway Plaza
Drive
Christiansburg
VA
24073 5.735%
83
11214 - 11250
West Lapham Street
West Allis
WI
53214 5.814%
84
3043 North Pecos
Road
Las Vegas
NV
89115 5.595%
85
1023 East Frye
Road
Phoenix
AZ
85048 5.704%
86
13201 Ramona
Boulevard
Irwindale
CA
91706 5.711%
<CAPTION>
Remaining
Term To
Stated Stated
Primary
Sequence Amortization Original
Cut-off
Maturity
Maturity
Due
Monthly
Administrative Servicing
Number
Basis
Balance
Balance
(months) Date
Date
Payment
Fee
Rate Fee
Rate
-------- ------------ ------------ -------------- --------- --------- ---- -------- -------------- ---------
<S>
<C>
<C>
<C>
<C>
<C>
<C>
<C>
<C>
<C>
1
ACT/360
$145,000,000 $143,619,681
31
1/1/2008
1st $665,601
0.032%
0.020%
2
ACT/360
110,000,000
110,000,000
119
5/1/2015
1st
512,098
0.062%
0.050%
3.1
60,543,243
60,543,243
1st
0.010%
3.2
34,456,757
34,456,757
1st
0.010%
3
ACT/360
95,000,000
95,000,000
116
2/1/2015
1st
476,500
0.022%
0.010%
4
ACT/360
88,600,000
88,600,000
82
4/1/2012
1st
354,538
0.042%
0.030%
5
ACT/360
77,000,000
77,000,000
52 10/1/2009
1st
298,486
0.022%
0.010%
6
ACT/360
73,500,000
73,500,000
119
5/1/2015
1st
340,405
0.032%
0.020%
7
30/360
56,050,000
56,050,000
55
1/1/2010
1st
199,328
0.042%
0.030%
8
ACT/360
51,000,000
50,836,429
118
4/1/2015
1st
299,241
0.042%
0.030%
9
ACT/360
50,300,000
50,300,000
121
7/1/2015
1st
272,023
0.042%
0.030%
10
ACT/360
47,000,000
46,751,387
115
1/1/2015
1st
269,151
0.062%
0.050%
11
ACT/360
44,000,000
44,000,000
82
4/1/2012
1st
177,743
0.042%
0.030%
12
ACT/360
44,000,000
44,000,000
120
6/1/2015
1st
238,087
0.062%
0.050%
13.1
9,136,364
9,136,364
1st
0.050%
13.2
7,831,169
7,831,169
1st
0.050%
13.3
7,831,169
7,831,169
1st
0.050%
13.4
4,350,649
4,350,649
1st
0.050%
13.5
2,610,390
2,610,390
1st
0.050%
13.6
1,740,260
1,740,260
1st
0.050%
13
ACT/360
33,500,000
33,500,000
76 10/1/2011
1st
182,777
0.062%
0.050%
14
ACT/360
32,800,000
32,800,000
114 12/1/2014
1st
176,098
0.062%
0.050%
15
ACT/360
30,995,196
30,995,196
119
5/1/2015
1st
176,941
0.062%
0.050%
16
30/360
30,149,000
30,149,000
58
4/1/2010
1st
107,971
0.062%
0.050%
17
ACT/360
28,875,000
28,875,000
117
3/1/2015
1st
155,502
0.062%
0.050%
18
30/360
19,730,000
19,730,000
60
6/1/2010
1st
79,216
0.112%
0.100%
19
30/360
8,285,000
8,285,000
60
6/1/2010 1st 32,229
0.112%
0.100%
28,015,000
28,015,000
20
ACT/360
27,900,000
27,900,000
81
3/1/2012
1st
125,196
0.062%
0.050%
21
30/360
25,380,000
25,380,000
57
3/1/2010
1st
90,892
0.062%
0.050%
22
ACT/360
22,640,000
22,640,000
119
5/1/2015
1st
99,201
0.062%
0.050%
23
ACT/360
21,700,000
21,700,000
119
5/1/2015
1st
125,096
0.062%
0.050%
24
ACT/360
20,000,000
19,979,782
119
5/1/2015
1st
109,946
0.062%
0.050%
25
ACT/360
20,000,000
19,914,826
116
2/1/2015
1st
115,941
0.062%
0.050%
26
ACT/360
17,150,000
17,150,000
119
5/1/2015
1st
75,639
0.112%
0.100%
27
ACT/360
17,000,000
16,964,617
118
4/1/2015
1st
95,566
0.112%
0.100%
28
ACT/360
16,120,000
16,120,000
119
5/1/2015
1st
71,300
0.112%
0.100%
29
ACT/360
16,000,000
15,965,377
118
4/1/2015
1st
88,125
0.112%
0.100%
30
ACT/360
15,700,000
15,700,000
119
5/1/2015
1st
69,244
0.112%
0.100%
31
ACT/360
15,500,000
15,500,000
120
6/1/2015
1st
89,893
0.112%
0.100%
32
ACT/360
13,960,000
13,960,000
119
5/1/2015
1st
62,938
0.112%
0.100%
33
ACT/360
13,300,000
13,300,000
119
5/1/2015
1st
73,188
0.062%
0.050%
34.1
7,560,000
7,560,000
1st
0.100%
34.2
5,640,000
5,640,000
1st
0.100%
34
ACT/360
13,200,000
13,200,000
117
3/1/2015
1st
75,612
0.112%
0.100%
35
ACT/360
13,096,000
13,096,000
119
5/1/2015
1st
57,383
0.112%
0.100%
36
ACT/360
12,853,229
12,853,229
117
3/1/2015
1st
73,626
0.112%
0.100%
37 ACT/360
12,400,000
12,400,000
118
4/1/2015
1st
53,505
0.112%
0.100%
38
ACT/360
11,250,000
11,238,745
119
5/1/2015
1st
62,144
0.112%
0.100%
39 ACT/360
10,280,000
10,280,000
120
6/1/2015
1st
58,601
0.112%
0.100%
40
ACT/360
10,200,000
10,200,000
60
6/1/2010
1st
44,788
0.112%
0.100%
41 ACT/360
10,120,000
10,099,672
118
4/1/2015
1st
57,937
0.072%
0.060%
42
ACT/360
9,500,000
9,471,214
118
4/1/2015
1st
57,659
0.112%
0.100%
43
ACT/360
9,200,000
9,200,000
119
5/1/2015
1st
50,093
0.112%
0.100%
44
ACT/360
9,100,000
9,100,000
119
5/1/2015
1st
51,241
0.112%
0.100%
45
ACT/360
4,100,000
4,100,000
117
3/1/2015
1st
22,430
0.112%
0.100%
46
ACT/360
4,100,000
4,100,000
117
3/1/2015
1st
17,598
0.112%
0.100%
8,200,000
8,200,000
47
ACT/360
8,000,000
7,974,473
117
3/1/2015
1st
43,983
0.062%
0.050%
48
ACT/360
7,800,000
7,792,411
119
5/1/2015
1st
43,644
0.112%
0.100%
49
ACT/360
7,800,000
7,764,940
116
2/1/2015
1st
43,799
0.112%
0.100%
50.1
3,600,000
3,600,000
1st
0.100%
50.2
3,440,000
3,440,000
1st
0.100%
50
ACT/360
7,040,000
7,040,000
120 6/1/2015 1st 32,114
0.112%
0.100%
51
ACT/360
7,000,000
6,990,523
119
5/1/2015
1st
43,805
0.062%
0.050%
52
ACT/360
6,900,000
6,893,112 119 5/1/2015 1st 38,153
0.112%
0.100%
53
ACT/360
6,752,000
6,752,000
119
5/1/2015
1st
29,728
0.112%
0.100%
54
ACT/360
6,200,000
6,200,000
120
6/1/2015
1st
33,800
0.112%
0.100%
55
ACT/360
6,000,000
6,000,000
118
4/1/2015
1st
32,961
0.062%
0.050%
56
ACT/360
5,600,000
5,600,000
115
1/1/2015
1st
32,063
0.072%
0.060%
57
ACT/360
5,421,349
5,411,264
118
4/1/2015
1st
32,243
0.112%
0.100%
58
ACT/360
5,359,152
5,348,756
118
4/1/2015
1st
31,224
0.112%
0.100%
59
ACT/360
5,200,000
5,189,482
118
4/1/
