EXHIBIT 4
================================================================================
BANC OF AMERICA FUNDING CORPORATION,
as
Depositor,
GREENPOINT MORTGAGE FUNDING, INC.,
as Servicer,
and
WELLS FARGO BANK, N.A.,
as
Trustee
POOLING AND SERVICING AGREEMENT
Dated April 28, 2005
-----------------------
Mortgage Pass-Through Certificates
Series 2005-C
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
PRELIMINARY
STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
Section 1.02
Calculations.................................................
Section 1.03 Rights of the NIMS
Insurer...................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans.................................
Section 2.02 Acceptance by the Trustee of the
Mortgage Loans..............
Section 2.03 Representations, Warranties and
Covenants of the Servicer....
Section 2.04 Representations and Warranties of
the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the
REMICs.......................
Section 2.06 REMIC Certificate Maturity
Date..............................
Section 2.07 Execution and Delivery of
Certificates.......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage
Loans...........................
Section 3.02 Subservicing; Enforcement of the
Obligations of the
Servicer....................................................
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance................
Section 3.04 Access to Certain
Documentation..............................
Section 3.05 Maintenance of Primary Mortgage
Insurance Policy; Claims.....
Section 3.06 Rights of the Depositor and the
Trustee in Respect of the
Servicer....................................................
Section 3.07 Trustee to Act as
Servicer...................................
Section 3.08 Collection of Mortgage Loan
Payments.........................
Section 3.09 Collection of Mortgage Loan
Payments; Servicer Custodial
Account, Distribution Account and Reserve Account...........
Section 3.10 Collection of Taxes, Assessments
and Similar Items;
Escrow Accounts.............................................
Section 3.11 Access of Trustee and NIMS Insurer
to Certain
Documentation and Information Regarding the Mortgage
Loans.......................................................
Section 3.12 Permitted Withdrawals from the
Servicer Custodial
Accounts and the Distribution Account.......................
Section 3.13 Maintenance of Hazard Insurance
and Other Insurance..........
Section 3.14 Enforcement of Due-On-Sale
Clauses; Assumption Agreements....
Section 3.15 Realization Upon Defaulted
Mortgage Loans; REO Property......
Section 3.16 Trustee to Cooperate; Release of
Mortgage Files..............
Section 3.17 Documents, Records and Funds in
Possession of the
Servicer to be Held for the Trustee.........................
Section 3.18 Servicing
Compensation.......................................
Section 3.19 Annual Statement as to
Compliance............................
Section 3.20 Annual Independent Public
Accountants' Servicing
Statement; Financial Statements.............................
Section 3.21
Advances.....................................................
Section 3.22 Modifications, Waivers, Amendments
and Consents..............
Section 3.23 Reports to the Securities and
Exchange Commission............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's
Certificate.......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02 Priorities of
Distributions..................................
Section 5.03 Allocation of
Losses.........................................
Section 5.04 Statements to
Certificateholders.............................
Section 5.05 Tax Returns and Reports to
Certificateholders................
Section 5.06 Tax Matters
Person...........................................
Section 5.07 Rights of the Tax Matters Person
in Respect of the
Trustee.....................................................
Section 5.08 REMIC Related
Covenants......................................
Section 5.09 REMIC
Distributions..........................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02 Registration of Transfer and
Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or
Stolen Certificates............
Section 6.04 Persons Deemed
Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the
Depositor and the Servicer.....
Section 7.02 Merger or Consolidation of the
Depositor or the Servicer.....
Section 7.03 Limitation on Liability of the
Depositor, the Servicer
and Others..................................................
Section 7.04 Depositor and Servicer Not to
Resign.........................
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default............................................
Section 8.02 Remedies of
Trustee..........................................
Section 8.03 Directions by Certificateholders
and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of
the Servicer and upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of
Successor.....................
Section 8.06 Notification to
Certificateholders...........................
ARTICLE IX
THE
TRUSTEE
Section 9.01 Duties of
Trustee............................................
Section 9.02 Certain Matters Affecting the
Trustee........................
Section 9.03 Trustee not Liable for
Certificates or Mortgage Loans........
Section 9.04 Trustee May Own
Certificates.................................
Section 9.05 Eligibility Requirements for
Trustee.........................
Section 9.06 Resignation and Removal of
Trustee...........................
Section 9.07 Successor
Trustee............................................
Section 9.08 Merger or Consolidation of
Trustee...........................
Section 9.09 Appointment of Co-Trustee or
Separate Trustee................
Section 9.10 Authenticating
Agents........................................
Section 9.11 Trustee's Fees and
Expenses..................................
Section 9.12 Appointment of
Custodian.....................................
Section 9.13 Paying
Agents................................................
Section 9.14 Limitation of
Liability......................................
Section 9.15 Trustee May Enforce Claims Without
Possession of
Certificates................................................
Section 9.16 Suits for
Enforcement........................................
Section 9.17 Waiver of Bond
Requirement...................................
Section 9.18 Waiver of Inventory, Accounting
and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or
Liquidation of All Mortgage
Loans.......................................................
Section 10.02 Additional Termination
Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment....................................................
Section 11.02 Recordation of Agreement;
Counterparts.......................
Section 11.03 Limitation on Rights of
Certificateholders...................
Section 11.04 Governing
Law................................................
Section 11.05
Notices......................................................
Section 11.06 Severability of
Provisions...................................
Section 11.07 Certificates Nonassessable
and Fully Paid....................
Section 11.08 Access to List of
Certificateholders.........................
Section 11.09
Recharacterization...........................................
Section 11.10 Third Party
Beneficiary......................................
<PAGE>
EXHIBITS
Exhibit A-A-1
Form of Face of Class A-1 Certificate
Exhibit A-A-2
Form of Face of Class A-2 Certificate
Exhibit A-A-3
Form of Face of Class A-3 Certificate
Exhibit B-M-1
Form of Face of Class M-1 Certificate
Exhibit B-M-2
Form of Face of Class M-2 Certificate
Exhibit B-B-1
Form of Face of Class B-1 Certificate
Exhibit B-B-2
Form of Face of Class B-2 Certificate
Exhibit B-B-3
Form of Face of Class B-3 Certificate
Exhibit B-1
Form of Face of Class CE Certificates...........
Exhibit B-2
Form of Face of Class P Certificates............
Exhibit B-3
Form of Face of Class R Certificates............
Exhibit C
Form of Reverse of all Certificates.............
Exhibit D-1
Loan Subgroup A Mortgage Loan Schedule..........
Exhibit D-2
Loan Subgroup B Mortgage Loan Schedule..........
Exhibit E
Form of Request for Release.....................
Exhibit F
Form of Certification of Establishment of
Account.........................................
Exhibit G-1
Form of Transferor's Certificate................
Exhibit G-2A
Form I of Transferee's Certificate..............
Exhibit G-2B
Form II of Transferee's Certificate.............
Exhibit H
Form of Transferee Representation Letter
for ERISA Restricted Certificates...............
Exhibit I
Form of Affidavit Regarding Transfer of
Residual Certificate............................
Exhibit J
List of Recordation States......................
Exhibit K
Form of Initial Certification ..................
Exhibit L
Form of Final Certification.....................
Exhibit M
Form of Sarbanes-Oxley Certification............
Exhibit N
Form of Trustee's Sarbanes-Oxley Reliance
Certification...................................
Exhibit O
Form of Servicer's Sarbanes-Oxley Reliance
Certification...................................
Exhibit P
Form of Yield Maintenance Agreements............
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated April 28, 2005, is
hereby executed by and among BANC OF
AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and
assigns, the "Depositor"),
GREENPOINT MORTGAGE FUNDING, INC., as
servicer (together with its permitted
successors and assigns, "GreenPoint" or the
"Servicer"), and WELLS FARGO BANK,
N.A., as trustee (together with its
permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T
H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Trustee
agree as follows:
PRELIMINARY STATEMENT
The Trust Estate for federal income tax purposes will be treated
as
two real estate mortgage investment
conduits (the "Upper-Tier REMIC" and the
"Lower-Tier REMIC," respectively, and each
a "REMIC"). The Offered Certificates
(other than the Class A-3 Certificates) and
each Component (exclusive of the
right of such Certificates or Components to
receive Cap Carryover Amounts) and
the Class CE Certificates shall constitute
"regular interests" in the Upper-Tier
REMIC. The Certificates (other than the
Class R and Class P Certificates) are
the "Regular Certificates." The
Uncertificated Lower-Tier Interests shall
constitute the "regular interests" in the
Lower-Tier REMIC. The "Class LR
Interest" shall be the "residual interest"
in the Lower-Tier REMIC. The "Class
UR Interest" shall be the "residual
interest" in the Upper-Tier REMIC. The
portion of the Trust Estate consisting of
the Reserve Account, the Yield
Maintenance Agreements, the Class P
Certificates, the rights of the Offered
Certificates to receive Cap Carryover
Amounts and the obligation of the Class CE
Certificates to pay Cap Carryover Amounts
shall not be assets of either REMIC
created hereunder, but rather shall be
assets of the Grantor Trust. The assets
of the Grantor Trust, the Certificates and
the Uncertificated Lower-Tier
Interests will represent the entire
beneficial ownership interest in the Trust.
The "latest possible maturity date" for
federal income tax purposes of all
interests created hereby will be the REMIC
Certificate Maturity Date.
<PAGE>
The following table sets forth characteristics of the
Certificates
and Components, together with the minimum
denominations and integral multiples
in excess thereof in which the Classes of
Certificates shall be issuable:
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
Integral
Pass-
Minimum
Multiples
Initial Class
Through
Denomination/
in Excess
Classes
Certificate Balance
Rate
Percentage Interest
of Minimum
------------------------------------------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
Class A-1
$295,302,000.00
(1)
$1,000
$1
------------------------------------------------------------------------------------------------------------------
Class A-2
$111,958,000.00
(2)
$1,000
$1
------------------------------------------------------------------------------------------------------------------
Class A-3
(3)
(3)
$1,000
$1
------------------------------------------------------------------------------------------------------------------
Class M-1
$14,365,000.00
(4)
$25,000
$1
------------------------------------------------------------------------------------------------------------------
Class M-2
$10,898,000.00
(4)
$25,000
$1
------------------------------------------------------------------------------------------------------------------
Class B-1
$7,926,000.00
(4)
$25,000
$1
------------------------------------------------------------------------------------------------------------------
Class B-2
$2,477,000.00
(4)
$25,000
$1
------------------------------------------------------------------------------------------------------------------
Class B-3
$3,220,000.00
(4)
$25,000
$1
------------------------------------------------------------------------------------------------------------------
Class CE
(5)
(5)
N/A
N/A
------------------------------------------------------------------------------------------------------------------
Class P
N/A
N/A
N/A
N/A
------------------------------------------------------------------------------------------------------------------
Class R
N/A
N/A
N/A
N/A
==================================================================================================================
Integral
Pass-
Multiples In
Initial Component
Through
Minimum
Excess Of
Components
Balance
Rate
Denomination
Minimum
------------------------------------------------------------------------------------------------------------------
Class A-3A
$32,812,000.00
(6)
N/A
N/A
------------------------------------------------------------------------------------------------------------------
Class A-3B
$12,440,000.00
(7)
N/A
N/A
------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) For each Distribution Date
occurring prior to and including the Auction
Date, interest will accrue on the
Class A-1 Certificates at a per annum
rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.24% and
(ii) the
Subgroup A Cap. On each Distribution Date following the Auction
Date, interest
will accrue on the Class A-1 Certificates at a per annum
rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.48% and
(ii) the
Subgroup A Cap.
(2) For each Distribution Date
occurring prior to and including the Auction
Date, interest
will accrue on the Class A-2 Certificates at a per annum
rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.25% and
(ii) the
Subgroup B Cap. On each Distribution Date following the Auction
Date, interest
will accrue on the Class A-2 Certificates at a per annum
rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.50% and
(ii) the
Subgroup B Cap.
(3) The Class A-3 Certificates will be
deemed for purposes of distributions of
principal and
interest to consist of two Components as described in the
table: the Class
A-3A Component and the Class A-3B Component (each, a
"Component").
The Components are not severable.
(4) For each Distribution Date
occurring prior to and including the Auction
Date, interest
will accrue on these Certificates at a per annum rate equal
to the lesser of
(i) the sum of One-Month LIBOR and 0.45%, 0.65%, 1.20%,
1.90% and 1.90%
with respect to the Class M-1, Class M-2, Class B-1, Class
B-2 and Class
B-3 Certificates, respectively, and (ii) the Pool Cap. On
each
Distribution Date following the Auction Date, interest will accrue
on
these
Certificates at a per annum rate equal to the lesser of (i) the
sum
of One-Month
LIBOR and 0.675%, 0.975%, 1.80%, 2.85% and 2.85% with respect
to the Class
M-1, Class M-2, Class B-1, Class B-2 and Class B-3
Certificates,
respectively, and (ii) the Pool Cap.
(5) Solely for REMIC purposes, the
Class CE Certificates will (i) have an
initial Original
Class Certificate Balance equal to the Initial
Overcollateralization Amount and (ii) will bear interest on their
Notional
Amount at their
Pass-Through Rate.
(6) For each Distribution Date
occurring prior to and including the Auction
Date, interest
will accrue on the Class A-3A Component at a per annum rate
equal to the
lesser of (i) the sum of One-Month LIBOR and 0.30% and (ii)
the Subgroup A
Cap. On each Distribution Date following the Auction Date,
interest will
accrue on the Class A-3A Component at a per annum rate equal
to the lesser of
(i) the sum of One-Month LIBOR and 0.60% and (ii) the
Subgroup A
Cap.
(7) For each Distribution Date
occurring prior to and including the Auction
Date, interest
will accrue on the Class A-3B Component at a per annum rate
equal to the
lesser of (i) the sum of One-Month LIBOR and 0.30% and (ii)
the Subgroup B
Cap. On each Distribution Date following the Auction Date,
interest will
accrue on the Class A-3B Component at a per annum rate equal
to the lesser of
(i) the sum of One-Month LIBOR and 0.60% and (ii) the
Subgroup B
Cap.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
60+ Day Delinquent Loan: For each Distribution Date, each
Mortgage
Loan (including each Mortgage Loan in
foreclosure and each Mortgage Loan for
which the Mortgagor has filed for
bankruptcy after the Closing Date) with
respect to which any portion of a Monthly
Payment is, as of the Due Date in the
prior calendar month, two months or more
past due and each Mortgage Loan
relating to an REO Property.
Accrued Certificate Interest: For any Distribution Date and
each
Class of interest-bearing Certificates
(other than the Class A-3 Certificates),
one month's interest accrued during the
related Interest Accrual Period at the
applicable Pass-Through Rate on the related
Class Certificate Balance less such
Class' Interest Percentage of Relief Act
Shortfalls for such Distribution Date.
For any Distribution Date and the Class A-3
Certificates, the sum of the Accrued
Component Interest for each Component.
Accrued Component Interest: For any Distribution Date and each
Component, one month's interest accrued
during the related Interest Accrual
Period at the applicable Pass-Through Rate
on the related Component Balance less
such Component's Interest Percentage of
Relief Act Shortfalls for such
Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Amount Held for Future Distribution: As to any Distribution
Date,
the total of the amounts held in the
Servicer Custodial Accounts at the close of
business on the preceding Determination
Date on account of (i) Principal
Prepayments and Liquidation Proceeds
received or made on the Mortgage Loans in
the month of such Distribution Date and
(ii) payments which represent receipt of
Monthly Payments on the Mortgage Loans in
respect of a Due Date or Due Dates
subsequent to the related Due Date.
Ancillary Income: All assumption fees, late payment charges and
all
other ancillary income and fees (other than
Prepayment Premiums) with respect to
the Mortgage Loans.
Applied Realized Loss Amount: With respect to each Distribution
Date, the excess, if any, of the aggregate
of (a) the Class Certificate Balances
of the Certificates (after taking into
account the distribution of the Principal
Distribution Amount on such Distribution
Date and any increase in any Class
Certificate Balance as a result of
Recoveries) over (b) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the Due Date in the month of such
Distribution Date.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value
determined in an appraisal obtained by the
originator at origination of such Mortgage
Loan or, in certain cases, an
automated valuation model or tax assessed
value and (b) the sales price for such
property, except that, in the case of
Mortgage Loans the proceeds of which were
used to refinance an existing mortgage
loan, the Appraised Value of the related
Mortgaged Property is the appraised value
thereof determined in an appraisal
obtained at the time of refinancing or, in
certain cases, an automated valuation
model or tax assessed value, or (ii) the
appraised value determined in an
appraisal made at the request of a
Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to
keep a Primary Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument
in recordable form, sufficient under
the laws of the jurisdiction wherein the
related Mortgaged Property is located
to give record notice of the sale of the
Mortgage.
Auction Date: As defined in Section 10.01 hereof.
Auction Winner: As defined in Section 10.01 hereof.
Available Funds: As to any Distribution Date, the sum of the
Interest Remittance Amount and the
Principal Remittance Amount for such
Distribution Date.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor in
interest.
Book-Entry Certificate: All Classes of Certificates other than
the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the
State of North Carolina, the State of
New York, the State of California, the
State of Minnesota, the State of Maryland
or any state in which the Corporate Trust
Office of the Trustee is located are
required or authorized by law or executive
order to be closed.
Cap: Any of the Subgroup A Cap, the Subgroup B Cap or the Pool
Cap.
Cap Carryover Amount: If on any Distribution Date the Accrued
Certificate Interest for any Class of
Certificates or the Accrued Component
Interest for any Component is based upon
clause (ii) of the definition of the
applicable Cap, the excess of (i) the
amount of interest such Class or Component
would have been entitled to receive on such
Distribution Date based on the
related Pass-Through Rate (without regard
to the applicable Cap), over (ii) the
amount of interest such Class or Component
received on such Distribution Date
based on the applicable Cap, together with
the unpaid portion of any such excess
from prior Distribution Dates (and interest
accrued thereon at the then
applicable Pass-Through Rate on such Class
or Component).
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2005-C
that are issued pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate (other than
the
Class CE, Class-P and Class R Certificates)
at any date, the maximum dollar
amount of principal to which the Holder
thereof is then entitled hereunder, such
amount being equal to the product of the
Percentage Interest of such Certificate
and the Class Certificate Balance of the
Class of Certificates of which such
Certificate is a part. The Class CE, Class
P and Class R Certificates have no
Certificate Balance.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable
to the Depository and selected by the
Trustee.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a
Book-Entry Certificate. With respect to
any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor or the Servicer or
any affiliate thereof shall be deemed
not to be outstanding and the Percentage
Interest and Voting Rights evidenced
thereby shall not be taken into account in
determining whether the requisite
amount of Percentage Interests or Voting
Rights, as the case may be, necessary
to effect any such consent has been
obtained, unless such entity is the
registered owner of the entire Class of
Certificates, provided that the Trustee
shall not be responsible for knowing that
any Certificate is registered in the
name of an affiliate of the Depositor or
the Servicer unless one of its
Responsible Officers has actual knowledge
thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class A-1, Class A-2, Class
A-3,
Class M-1, Class M-2, Class B-1, Class B-2,
Class B-3, Class CE, Class P and
Class R Certificates, as the case may
be.
Class A Certificates: The Class A-1, Class A-2 and Class A-3
Certificates.
Class A-3 Realized Loss Amortization Amount: As to the
Components
and as of any Distribution Date, the lesser
of (x) the Unpaid Realized Loss
Amount for the Components as of such
Distribution Date and (y) the excess of (i)
the Monthly Excess Cashflow Amount over
(ii) the sum of the amounts described in
Section 5.02(c)(i) through (iii) hereof, in
each case for such Distribution
Date.
Class A-3A Applied Realized Loss Amount: With respect to any
Distribution Date on and after the Class
Certificate Balance of the Class M-1
Certificates has been reduced to zero, and
after the Applied Realized Loss
Amount has been allocated pursuant to the
first paragraph of Section 5.03, the
excess, if any, of (a) the sum of the
aggregate Class Certificate Balance of the
Class A-1 Certificates and the Component
Balance of the Class A-3A Component
(after taking into account the distribution
of the Principal Distribution Amount
on such Distribution Date and any increase
in the Class Certificate Balance of
the Class A-1 Certificates or the Component
Balance of the Class A-3A Component
as a result of Recoveries) over (b) the
aggregate Stated Principal Balance of
the Subgroup A Mortgage Loans as of the Due
Date in the month of such
Distribution Date.
Class A-3B Applied Realized Loss Amount: With respect to any
Distribution Date on and after the Class
Certificate Balance of the Class M-1
Certificates has been reduced to zero, and
after the Applied Realized Loss
Amount has been allocated pursuant to the
first paragraph of Section 5.03, the
excess, if any, of (a) the sum of the
aggregate Class Certificate Balance of the
Class A-2 Certificates and the Component
Balance of the Class A-3B Component
(after taking into account the distribution
of the Principal Distribution Amount
on such Distribution Date and any increase
in the Class Certificate Balance of
the Class A-2 Certificates or the Component
Balance of the Class A-3B Component
as a result of Recoveries) over (b) the
aggregate Stated Principal Balance of
the Subgroup B Mortgage Loans as of the Due
Date in the month of such
Distribution Date.
Class B Certificates: The Class B-1, Class B-2 and Class B-3
Certificates.
Class B-1 Principal Distribution Amount: As of any Distribution
Date
on or after the Stepdown Date and as long
as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the
aggregate Class Certificate Balance of the
Class A Certificates (after taking into
account the payment of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the Class
Certificate Balance of the Class M-1
Certificates (after taking into account the
payment of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance
of the Class M-2 Certificates (after
taking into account the payment of the
Class M-2 Principal Distribution Amount
on such Distribution Date), and (iv) the
Class Certificate Balance of the Class
B-1 Certificates immediately prior to such
Distribution Date over (y) the lesser
of (A) the product of (i) 96.10% and (ii)
the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due Date in
the month of such Distribution Date
and (B) the amount by which the aggregate
Stated Principal Balance of the
Mortgage Loans as of the Due Date in the
month of such Distribution Date exceeds
the product of (i) 0.50% and (ii) the
Cut-off Date Pool Principal Balance.
Class B-1 Realized Loss Amortization Amount: As to the Class
B-1
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class B-1
Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the sum
of the amounts described in Section
5.02(c)(i) through (xi) hereof, in each case
for such Distribution Date.
Class B-2 Principal Distribution Amount: As of any Distribution
Date
on or after the Stepdown Date and as long
as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the
aggregate Class Certificate Balance of the
Class A Certificates (after taking into
account the payment of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the Class
Certificate Balance of the Class M-1
Certificates (after taking into account the
payment of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance
of the Class M-2 Certificates (after
taking into account the payment of the
Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class
Certificate Balance of the Class B-1
Certificates (after taking into account the
payment of the Class B-1 Principal
Distribution Amount on such Distribution
Date), and (v) the Class Certificate
Balance of the Class B-2 Certificates
immediately prior to such Distribution
Date over (y) the lesser of (A) the product
of (i) 97.10% and (ii) the aggregate
Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month
of such Distribution Date and (B) the
amount by which the aggregate Stated
Principal Balance of the Mortgage Loans as
of the Due Date in the month of such
Distribution Date exceeds the product of
(i) 0.50% and (ii) the Cut-off Date
Pool Principal Balance.
Class B-2 Realized Loss Amortization Amount: As to the Class
B-2
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class B-2
Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the sum
of the amounts described in Section
5.02(c)(i) through (xiv) hereof, in each
case for such Distribution Date.
Class B-3 Principal Distribution Amount: As of any Distribution
Date
on or after the Stepdown Date and as long
as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the
aggregate Class Certificate Balance of the
Class A Certificates (after taking into
account the payment of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the Class
Certificate Balance of the Class M-1
Certificates (after taking into account the
payment of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance
of the Class M-2 Certificates (after
taking into account the payment of the
Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class
Certificate Balance of the Class B-1
Certificates (after taking into account the
payment of the Class B-1 Principal
Distribution Amount on such Distribution
Date), (v) the Class Certificate
Balance of the Class B-2 Certificates
(after taking into account the payment of
the Class B-2 Principal Distribution Amount
on such Distribution Date) and (vi)
the Class Certificate Balance of the Class
B-3 Certificates immediately prior to
such Distribution Date over (y) the lesser
of (A) the product of (i) 98.40% and
(ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due
Date in the month of such Distribution Date
and (B) the amount by which the
aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in
the month of such Distribution Date exceeds
the product of (i) 0.50% and (ii)
the Cut-off Date Pool Principal
Balance.
Class B-3 Realized Loss Amortization Amount: As to the Class
B-3
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class B-3
Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the sum
of the amounts described in Section
5.02(c)(i) through (xvii) hereof, in each
case for such Distribution Date.
Class CE Distributable Amount: With respect to any Distribution
Date, the sum of (i) the interest accrued
on such Class CE Certificate at its
Pass-Through Rate calculated on its
Notional Amount less the amount (without
duplication) of Cap Carryover Amounts paid
pursuant to Section 5.02(c)(xix),
(ii) any remaining Overcollateralization
Release Amounts, (iii) the aggregate of
amounts remaining in the Reserve Account
after the distributions in Section
3.09(f)(i)(A).
Class CE Uncertificated Principal Balance: As of any date of
determination, the Initial
Overcollateralization Amount minus the sum of (i) any
Realized Losses allocated thereto and (ii)
any amounts distributed (or deemed
distributed) to the Class CE Certificates
with respect thereto.
Class M-1 Principal Distribution Amount: As of any Distribution
Date
on or after the Stepdown Date and as long
as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the
aggregate Class Certificate Balance of the
Class A Certificates (after taking into
account the payment of the Senior
Principal Distribution Amount on such
Distribution Date) and (ii) the Class
Certificate Balance of the Class M-1
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 88.50% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the Due Date
in the month of such Distribution Date and
(B) the amount by which the aggregate
Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month
of such Distribution Date exceeds the
product of (i) 0.50% and (ii) the Cut-off
Date Pool Principal Balance.
Class M-1 Realized Loss Amortization Amount: As to the Class
M-1
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-1
Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the sum
of the amounts described in Section
5.02(c)(i) through (v) hereof, in each case
for such Distribution Date.
Class M-2 Principal Distribution Amount: As of any Distribution
Date
on or after the Stepdown Date and as long
as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the
aggregate Class Certificate Balance of the
Class A Certificates (after taking into
account the payment of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the Class
Certificate Balance of the Class M-1
Certificates (after taking into account the
payment of the Class M-1 Principal
Distribution Amount on such Distribution
Date) and (iii) the Class Certificate
Balance of the Class M-2 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 92.90% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the
month of such Distribution Date and (B)
the amount by which the aggregate Stated
Principal Balance of the Mortgage Loans
as of the Due Date in the month of such
Distribution Date exceeds the product of
(i) 0.50% and (ii) the Cut-off Date Pool
Principal Balance.
Class M-2 Realized Loss Amortization Amount: As to the Class
M-2
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-2
Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the sum
of the amounts described in Section
5.02(c)(i) through (viii) hereof, in each
case for such Distribution Date.
Class A Certificates: The Class A-1, Class A-2 and Class A-3
Certificates.
Class B Certificates: The Class B-1, Class B-2 and Class B-3
Certificates.
Class Certificate Balance: Class Certificate Balance means,
with
respect to any Class of Offered
Certificates (other than the Class A-3
Certificates) and any Distribution Date,
and subject to Section 5.02(f), the
Initial Class Certificate Balance of such
Class (a) reduced by the sum of (i)
all amounts actually distributed in respect
of principal of such Class on all
prior Distribution Dates and (ii) Applied
Realized Loss Amounts allocated
thereto for previous Distribution Dates
pursuant to Section 5.03 and (b)
increased by any Recoveries allocated to
such Class for previous Distribution
Dates. The Class Certificate Balance of the
Class A-3 Certificates will equal
the sum of the Component Balances of the
Components. The Class CE, Class P and
Class R Certificates do not have a Class
Certificate Balance.
Class M Certificates: The Class M-1 Certificates and the Class
M-2
Certificates.
Class M Certificateholders: Collectively, the Holders of the Class
M
Certificates.
Class LR Interest: As defined in the Preliminary Statement.
Class UR Interest: As defined in the Preliminary Statement.
Closing Date: April 28, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: As defined in Section 3.18.
Component Balance: With respect to any Component and any
Distribution Date and subject to Section
5.02(f), the Initial Component Balance
of such Component (a) reduced by the sum of
(i) all amounts actually distributed
in respect of principal of such Component
on all prior Distribution Dates and
(ii) Class A-3A Applied Realized Loss
Amounts, Class A-3B Applied Realized Loss
Amount or Applied Realized Loss Amounts
allocated thereto, as the case may be,
for previous Distribution Dates pursuant to
Section 5.03 and (b) increased by
any Recoveries allocated to such Component
for previous Distribution Dates.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of
the
Trustee at which at any particular time its
corporate trust business with
respect to this Agreement is conducted,
which office at the date of the
execution of this instrument is located at
9062 Old Annapolis Road, Columbia,
Maryland 21045-1951, Attention: Corporate
Trust Services - BAFC 2005-C, and for
certificate transfer purposes is located at
Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention:
Corporate Trust Services - BAFC 2005-C,
or at such other address as the Trustee may
designate from time to time by
notice to the Certificateholders, the
Depositor, the NIMS Insurer and the
Servicer.
Corresponding Classes or Components: With respect to the
Lower-Tier
REMIC and the Upper-Tier REMIC, the
following Classes or Components shall be
Corresponding Classes or Components:
Corresponding
Lower-Tier
Interests
Corresponding Upper-Tier Classes or Components
--------------------
----------------------------------------------
LT1A1
Class A-1 Certificates
LT1A2
Class A-2 Certificates
LT1A3A
Class A-3A Component
LT1A3B
Class A-3B Component
LT1M1
Class M-1 Certificates
LT1M2
Class M-2 Certificates
LT1B1
Class B-1 Certificates
LT1B2
Class B-2 Certificates
LT1B3
Class B-3 Certificates
Custodial Agreement: Initially, the Custodial Agreement, dated
April
28, 2005, by and among the Depositor, the
Servicer, Trustee and the Custodian
and thereafter any custodial agreement
entered into pursuant to Section 9.12.
Custodian: Initially, Wachovia Bank, National Association, as
custodian under the Custodial Agreement,
and thereafter the Custodian, if any,
hereafter appointed by the Trustee pursuant
to Section 9.12. The Custodian may
(but need not) be the Trustee or any Person
directly or indirectly controlling
or controlled by or under common control of
the Trustee. None of the Depositor,
the Servicer nor any Person directly or
indirectly controlling or controlled by
or under common control with any such
Person may be appointed Custodian.
Customary Servicing Procedures: With respect to the Servicer,
procedures (including collection
procedures) that such Servicer customarily
employs and exercises in servicing and
administering mortgage loans for its own
account and which are in accordance with
accepted mortgage servicing practices
of prudent lending institutions servicing
mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties
are located.
Cut-off Date: April 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate of the
Cut-off
Date Principal Balances of the Mortgage
Loans which is $495,361,118.59.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close
of business on the Cut-off Date,
reduced by all installments of principal
due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the
Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan
over (ii) the amount of the monthly
payment of principal and/or interest
required to be paid with respect to such
Due Date by the Mortgagor as established by
a court of competent jurisdiction
(pursuant to an order which has become
final and nonappealable) as a result of a
proceeding initiated by or against the
related Mortgagor under the Bankruptcy
Code, as amended from time to time (11
U.S.C.); provided that no such excess
shall be considered a Debt Service
Reduction so long as (a) the Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payment due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the Servicer in
accordance with the terms of such Mortgage
Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service
Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for
pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then
outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation
thereof established by a court of competent
jurisdiction (pursuant to an order which
has become final and nonappealable) as
a result of a proceeding initiated by or
against the related Mortgagor under the
Bankruptcy Code, as amended from time to
time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged
Property; provided that no such excess
shall be considered a Deficient Valuation
so long as (a) the Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payments due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the Servicer in
accordance with the terms of such Mortgage
Loan as in effect on the Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest,
as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of
the Book-Entry Certificates or any
successor thereto appointed in accordance
with this Agreement. The Depository
shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 15th day of
the
month of the related Distribution Date or,
if such 15th day is not a Business
Day, the Business Day immediately preceding
such day.
Distribution Account: The Eligible Account created and maintained
by
the Trustee pursuant to Section 3.09(b) in
the name of the Trustee for the
benefit of the Certificateholders and
designated "Wells Fargo Bank, N.A., as
Trustee, in trust for registered holders of
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series
2005-C." The Distribution Account
shall be deemed to consist of three
sub-accounts: one for each Loan Subgroup
(designated as Sub-Account 1 and
Sub-Account 2) and one sub-account referred to
herein as the Upper-Tier Certificate
Sub-Account. Funds in the Distribution
Account shall be held in trust for the
Holders of the Certificates for the uses
and purposes set forth in this
Agreement.
Distribution Date: The 20th day of each month beginning in May
2005
(or, if such day is not a Business Day, the
next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such
Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
a federal or state chartered depository
institution or trust company the
short-term unsecured debt obligations of
which (or, in the case of a depository
institution or trust company that is the
principal subsidiary of a holding
company, the debt obligations of such
holding company) have the highest
short-term ratings of each Rating Agency at
the time any amounts are held on
deposit therein, or (ii) an account or
accounts in a depository institution or
trust company in which such accounts are
insured by the FDIC (to the limits
established by the FDIC) and the uninsured
deposits in which accounts are
otherwise secured such that, as evidenced
by an Opinion of Counsel delivered to
the Trustee, the NIMS Insurer and to each
Rating Agency, the Certificateholders
have a claim with respect to the funds in
such account or a perfected first
priority security interest against any
collateral (which shall be limited to
Permitted Investments) securing such funds
that is superior to claims of any
other depositors or creditors of the
depository institution or trust company in
which such account is maintained, or (iii)
a trust account or accounts
maintained with the trust department of a
federal or state chartered depository
institution or trust company (including the
Trustee), acting in its fiduciary
capacity or (iv) any other account
acceptable to each Rating Agency. Eligible
Accounts may bear interest and may include,
if otherwise qualified under this
definition, accounts maintained with the
Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class CE, Class P and
Class R Certificates.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums,
fire and hazard insurance premiums
and other payments as may be required to be
escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any
Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with
respect to such Mortgage Loan
pursuant to Section 3.12(a)(iii), exceeds
(i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
Date in the month in which such
Mortgage Loan became a Liquidated Mortgage
Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due
Date as to which interest was last paid
or for which a Periodic Advance was made
(and not reimbursed) up to the Due Date
applicable to the Distribution Date
immediately following the calendar month
during which such liquidation occurred.
Extra Principal Distribution Amount: As of any Distribution
Date,
the lesser of (x) the Monthly Excess
Interest Amount for such Distribution Date
and (y) the Overcollateralization
Deficiency for such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates
will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated
by the Depositor by written notice to
the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K:
As defined in Section 3.23(a).
Grantor Trust: That portion of the Trust exclusive of the
REMICs
consisting of (a) the Prepayment Premiums
and the right of the Class P
Certificateholders to receive such
Prepayment Premiums, (a) the right of the
Offered Certificates to receive Cap
Carryover Amounts, (b) each Yield
Maintenance Agreement, the Reserve Account
and the beneficial interest of the
Class CE Certificates with respect thereto
and (c) the obligation of the Class
CE Certificates to pay Cap Carryover
Amounts.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, or its successor in interest,
in its capacity as Servicer, or any
successor servicer for such Mortgage Loans
appointed as herein provided.
Gross Margin: As to each Mortgage Loan, the fixed percentage
set
forth in the related Mortgage Note and
indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is
added to the Index on each Rate
Adjustment Date to determine (subject to
rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such
Mortgage Loan until the next Rate
Adjustment Date.
Holder: A Certificateholder.
Indenture: An indenture relating to the issuance of net
interest
margin notes secured by the Class CE
Certificates and the Class P Certificates,
which may or may not be guaranteed by the
NIMS Insurer.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact
independent of the Depositor, the Trustee and
the Servicer, (ii) does not have any direct
financial interest or any material
indirect financial interest in the
Depositor, the Trustee or the Servicer or in
an affiliate of any of them, and (iii) is
not connected with the Depositor, the
Trustee or the Servicer as an officer,
employee, promoter, underwriter, trustee,
partner, director or person performing
similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, a rate
per
annum that is defined to be the arithmetic
mean of the interbank offered rates
for six month U.S. dollar-denominated
deposits in the London market, as
published in The Wall Street Journal and
most recently available either (i) as
of the first Business Day in the month
preceding the month of the applicable
Rate Adjustment Date or (ii) up to 45 days
before the applicable Rate Adjustment
Date.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance set forth in
the Preliminary Statement.
Initial Component Balance: As to each Component, the Component
Balance set forth in the Preliminary
Statement.
Initial Overcollateralization Amount: $3,963,118.59.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any related insurance policy,
including all riders and
endorsements thereto in effect, including
any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the
Mortgage Loans.
Interest Accrual Period: As to each Distribution Date and each
Class
of Offered Certificates, the period from
and including the Distribution Date in
the prior calendar month (or in the case of
the first Distribution Date, from
the Closing Date) through and including the
day prior to the current
Distribution Date. Interest on each Class
of Offered Certificates will be
calculated on the basis of the actual
number of days in the related Interest
Accrual Period and a 360-day year.
Interest Carry Forward Amount: For any Class of Offered
Certificates
(other than the Class A-3 Certificates) and
the Components and any Distribution
Date, the sum of (a) the excess, if any, of
the Accrued Certificate Interest or
Accrued Component Interest, as the case may
be, and any Interest Carry Forward
Amount for the prior Distribution Date,
over the amount in respect of interest
actually distributed on such Class or
Component on such prior Distribution Date
and (b) interest on such excess at the
applicable Pass-Through Rate for the
related Interest Accrual Period.
Interest Percentage: With respect to any Class of Offered
Certificates (other than the Class A-3
Certificates) or any Component and any
Distribution Date, the ratio (expressed as
a decimal carried to six places) of
the Accrued Certificate Interest for such
Class or Accrued Component Interest
for such Component to the sum of the
Accrued Certificate Interest for all
Classes and Accrued Component Interest for
all Components, in each case with
respect to such Distribution Date, without
regard to Relief Act Shortfalls.
Interest Remittance Amount: As of any Distribution Date, the sum
of
the Subgroup A Interest Remittance Amount
and the Subgroup B Interest Remittance
Amount for such Distribution Date.
LIBOR Business Day: Any day on which banks in the London,
England
and The City of New York are open and
conducting transactions in foreign
currency and exchange.
LIBOR Determination Date: With respect to the Offered
Certificates
and each Interest Accrual Period (after the
first Interest Accrual Period), the
second LIBOR Business Day prior to the day
on which such Interest Accrual Period
commences.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO
Property) that was liquidated in the
calendar month preceding the month of such
Distribution Date and as to which the
Servicer has certified (in accordance with
this Agreement) that it has received
all proceeds it expects to receive in
connection with the liquidation of such
Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or
complete liquidation of defaulted
Mortgage Loans, whether through trustee's
sale, foreclosure sale or otherwise or
amounts received in connection with any
condemnation or partial release of a
Mortgaged Property and any other proceeds
received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees and Advances.
Loan Subgroup: Any of Loan Subgroup A or Loan Subgroup B.
Loan Subgroup A: The Subgroup A Mortgage Loans.
Loan Subgroup B: The Subgroup B Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed
as a percentage, the numerator of
which is the outstanding principal balance
of the related Mortgage Loan at the
date of determination and the denominator
of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.09(a).
Lower-Tier Rate: With
respect to Regular Interest LT1AA, Regular
Interest LT1A1, Regular Interest LT1A2,
Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2,
Regular Interest LT1B3, Regular Interest
LT1ZZ, Regular Interest LT1SUB, Regular
Interest LT2SUB and Regular Interest
LT1XX, the Net WAC of the Mortgage Loans.
With respect to Regular Interest
LT1GRP, the Subgroup A Cap. With respect
Regular Interest LT2GRP, the Subgroup B
Cap.
Lower-Tier REMIC: As defined in the Preliminary Statement, the
segregated asset pool, the assets of which
consist of the Mortgage Loans, such
amounts as shall from time to time be held
in the Distribution Account (other
than amounts held in respect of the
Upper-Tier Certificate Sub-Account), the
insurance policies, if any, relating to a
Mortgage Loan and the Mortgaged
Property which secured a Mortgage Loan and
which has been acquired by
foreclosure or deed in lieu of
foreclosure.
LT Interest Loss Allocation Amount: With respect to any
Distribution
Date, an amount equal to (a) the product of
(i) 50% of the aggregate Stated
Principal Balance of the Mortgage Loans as
of the Due Date in the month of such
Distribution Date and (ii) the Lower-Tier
Rate for Regular Interest LT1AA minus
the Marker Rate, divided by (b) 12.
LT Marker Allocation Percentage: 50% of any amount payable from
or
loss attributable to the Mortgage Loans,
which shall be allocated to Regular
Interest LT1AA, Regular Interest LT1A1,
Regular Interest LT1A2, Regular Interest
LT1A3A, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest
LT1B2, Regular Interest LT1B3 and
Regular Interest LT1ZZ as provided in
Section 5.09(b)(i).
LT Overcollateralization Target Amount: 0.50% of the Targeted
Overcollateralization Amount.
LT Overcollateralized Amount: With respect to any date of
determination, (i) 0.50% of the aggregate
Uncertificated Principal Balances of
the Uncertificated Lower-Tier Interests
minus (ii) the aggregate of the
Uncertificated Principal Balances of
Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest
LT1B1, Regular Interest LT1B2 and
Regular Interest LT1B3, in each case as of
such date of determination.
LT Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a)
the product of (i) 50% of the
aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in
the month of such Distribution Date and
(ii) 1 minus a fraction, the numerator
of which is two times the aggregate of the
Uncertificated Principal Balances of
Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2 and
Regular Interest LT1B3 and the
denominator of which is the aggregate of
the Uncertificated Principal Balances
of Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A,
Regular Interest LT1A3B, Regular Interest
LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2,
Regular Interest LT1B3 and Regular
Interest LT1ZZ.
LT Sub WAC Allocation Percentage: 50% of any amount payable or
loss
attributable from the Mortgage Loans, which
shall be allocated to Regular
Interest LT1SUB, Regular Interest LT1GRP,
Regular Interest LT2SUB, Regular
Interest LT2GRP and Regular Interest
LT1XX.
Marker Rate: With respect to the Class CE Certificates and any
Distribution Date, a per annum rate equal
to two (2) times the weighted average
of the applicable Lower-Tier Rates for
Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest
LT1B1, Regular Interest LT1B2, Regular
Interest LT1B3 and Regular Interest LT1ZZ,
(i) with the rate on each such
Uncertificated Lower-Tier Interest (other
than Regular Interest LT1ZZ) subject
to a cap equal to the Pass-Through Rate of
its Corresponding Class or Component
(taking into account in determining any
such Pass-Through Rate the imposition of
the applicable Cap as described in footnote
1, 2, 4, 6 or 7 to the table in the
Preliminary Statement relating to the
Certificates) for the purposes of this
calculation and (ii) with the rate on
Regular Interest LT1ZZ subject to a cap of
zero for the purpose of this calculation;
provided, however, that for this
purpose, calculations of the Lower-Tier
Rate and the related caps with respect
to each such Uncertificated Regular
Interest (other than Regular Interest LT1ZZ)
shall be multiplied by a fraction, the
numerator of which is the actual number
of days in the Interest Accrual Period and
the denominator of which is 30.
Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount:
With
respect to any Distribution Date, the
excess of (a) accrued interest at the
Lower-Tier Rate applicable to Regular
Interest LT1ZZ for such Distribution Date
on a balance equal to the Uncertificated
Principal Balance of Regular Interest
LT1ZZ minus the LT Overcollateralized
Amount, in each case for such Distribution
Date, over (b) Uncertificated Accrued
Interest on Regular Interest LT1A1,
Regular Interest LT1A2, Regular Interest
LT1A3A, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular Interest
LT1M2, Regular Interest LT1B1, Regular
Interest LT1B2 and Regular Interest LT1B3,
each subject to a cap equal to the
Pass-Through Rate of the related
Corresponding Class for the purpose of this
calculation; provided, however, that for
this purpose, calculations of the
Lower-Tier Rate and the related caps with
respect to Uncertificated Accrued
Interest on Regular Interest LT1A1, Regular
Interest LT1A2, Regular Interest
LT1A3A, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest
LT1B2 and Regular Interest LT1B3 shall
be multiplied by a fraction, the numerator
of which is the actual number of days
in the Interest Accrual Period and the
denominator of which is 30.
MERS: As defined in Section 2.01(b)(iii) hereof.
Minimum Bid Price: As defined in Section 10.01 hereof.
Monthly Excess Cashflow Amount: The sum of the Monthly Excess
Interest Amount, the Overcollateralization
Release Amount and (without
duplication) any portion of the Principal
Distribution Amount remaining after
principal distributions on the Offered
Certificates.
Monthly Excess Interest Amount: With respect to each
Distribution
Date, the amount, if any, by which the
Interest Remittance Amount for such
Distribution Date exceeds the aggregate
amount distributed on such Distribution
Date to the Certificates pursuant to
priorities first through ninth under
Section 5.02(a).
Monthly Form 8-K: As defined in Section 3.23(a).
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified herein,
shall give effect to any related Debt
Service Reduction and any Deficient
Valuation that affects the amount of the
monthly payment due on such Mortgage
Loan.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing
a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to the Mortgage File pursuant
to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on
the principal balance of such Mortgage
Loan, as adjusted from time to time in
accordance with the provisions of the
related Mortgage Note, which rate is (a)
prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial
Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage
Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the
Index, as of the Rate Adjustment Date
applicable to such Due Date, and the Gross
Margin, rounded as set forth in such
Mortgage Note, subject to the Periodic Cap
and the Rate Ceiling applicable to
such Mortgage Loan at any time during the
life of such Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated April 28, 2005, between
Bank of America, National Association,
as seller, and the Depositor, as
purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the Servicer to reflect the
addition of Substitute Mortgage
Loans and the deletion of Defective
Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee
as part of the Trust Estate and from
time to time subject to this Agreement,
attached hereto as Exhibit D-1 and
Exhibit D-2 setting forth the following
information with respect to each
Mortgage Loan: (i) the Mortgage Loan
identifying number; (ii) a code indicating
whether the Mortgaged Property is
owner-occupied; (iii) the property type for
each Mortgaged Property; (iv) the original
months to maturity or the remaining
months to maturity from the Cut-off Date;
(v) the Loan-to-Value Ratio at
origination; (vi) the Mortgage Interest
Rate as of the Cut-off Date; (vii) the
date on which the first Monthly Payment was
due on the Mortgage Loan, and, if
such date is not the Due Date currently in
effect, such Due Date; (viii) the
stated maturity date; (ix) the amount of
the Monthly Payment as of the Cut-off
Date; (x) the paid-through date; (xi) the
original principal amount of the
Mortgage Loan; (xii) the principal balance
of the Mortgage Loan as of the close
of business on the Cut-off Date, after
application of payments of principal due
on or before the Cut-off Date, whether or
not collected, and after deduction of
any payments collected of scheduled
principal due after the Cut-off Date; (xiii)
a code indicating the purpose of the
Mortgage Loan; (xiv) a code indicating the
documentation style; (xv) the Appraised
Value; (xvi) the first Rate Adjustment
Date; (xvii) the Rate Ceiling; (xviii) the
Periodic Cap; (xix) the Gross Margin;
(xx) the Index; (xxi) the closing date of
such Mortgage Loan; and (xxii) whether
such Mortgage Loan is subject to a
Prepayment Premium. With respect to each Loan
Subgroup in the aggregate, the Mortgage
Loan Schedule shall set forth the
following information, as of the Cut-off
Date: (i) the number of Mortgage Loans;
(ii) the current aggregate outstanding
principal balance of the Mortgage Loans;
(iii) the weighted average Mortgage
Interest Rate of the Mortgage Loans; and
(iv) the weighted average months to
maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as
from time to time are held as a part
of the Trust Estate (including any
Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being
identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence
of
indebtedness evidencing the indebtedness of
a Mortgagor under a Mortgage Loan,
together with all riders thereto and
amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or
residential long term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage
Interest Rate thereon on the first day of
the month preceding the month of the
related Distribution Date reduced by (i)
the Servicing Fee Rate and (ii) the Trustee
Fee Rate.
Net WAC: As to any Loan Subgroup and any Distribution Date, the
weighted average of the Net Mortgage
Interest Rates of the Mortgage Loans in
such Loan Subgroup (based on Stated
Principal Balances of the Mortgage Loans in
such Loan Subgroup on the Due Date in the
month preceding the month of such
Distribution Date).
NIMS Insurer: Any insurer that is guaranteeing certain payments
under notes secured by collateral which
includes all or a portion of the Class
CE and Class P Certificates.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a
Mortgage Loan which has not been previously
reimbursed and which, in the good faith
judgment of the Servicer or the Trustee,
as applicable, will not or, in the case of
a proposed Advance, would not be
ultimately recoverable from the related
Mortgagor, related Liquidation Proceeds,
or other recoveries in respect of the
related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Class A Certificates and the Class
M-1,
Class M-2, Class B-1, Class B-2 and Class
B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board,
President or a Vice President and by the
Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant
Secretaries, or any other duly authorized
officer of the Depositor and delivered
to the Trustee.
One-Month LIBOR: With respect to the initial Interest Accrual
Period, 3.06% per annum. With respect to
each Interest Accrual Period (other
than the initial Interest Accrual Period),
the rate determined by the Trustee on
the related LIBOR Determination Date on the
basis of the offered rate for
one-month United States dollar deposits, as
such rate appears on the Telerate
Page 3750, as of 11:00 a.m. (London time)
on such LIBOR Determination Date. If
no such quotations are available on a LIBOR
Determination Date, One-Month LIBOR
for the related Interest Accrual Period
will be the higher of (i) One-Month
LIBOR for the previous LIBOR Determination
Date (or, in the case of the first
LIBOR Determination Date for which the
Trustee is required to determine
One-Month LIBOR, 3.06% per annum) or (ii) a
per annum rate which the Trustee
determines to be either (a) the arithmetic
mean (rounding such arithmetic mean
upwards if necessary to the nearest whole
multiple of 1/16%) of the one-month
United States dollar lending rate that New
York City banks selected by the
Trustee are quoting on the relevant LIBOR
Determination Date to the principal
London offices of at least two leading
banks in the London interbank market or
(b) in the event that the Trustee can
determine no such arithmetic mean, the
lowest one-month United States dollar
lending rate that the New York City banks
selected by the Trustee are quoting on such
LIBOR Determination Date to leading
European banks.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee who may be counsel for the
Depositor or the Servicer, except that any
opinion of counsel relating to the
qualification of the Trust Estate as two
separate REMICs or compliance with the
REMIC Provisions must be an opinion of
Independent counsel.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal
Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage
Loan prior to such Due Date and which
was not purchased from the Trust prior to
such Due Date pursuant to Section
2.02, 2.04 or Section 3.15(b).
Overcollateralization Amount: As of any Distribution Date, the
excess, if any, of (x) the aggregate Stated
Principal Balance of the Mortgage
Loans as of the Due Date in the month of
such Distribution Date over (y) the
aggregate Class Certificate Balance of all
Classes of Offered Certificates
(after taking into account all
distributions of principal on such Distribution
Date and the increase of any Class
Certificate Balance or Component Balance of a
Class of Offered Certificates or a
Component, as applicable, as a result of
Recoveries).
Overcollateralization Deficiency: As of any Distribution Date,
the
excess, if any, of (x) the Targeted
Overcollateralization Amount for such
Distribution Date over (y) the
Overcollateralization Amount for such
Distribution Date, calculated for this
purpose after taking into account the
reduction on such Distribution Date of the
Class Certificate Balances of all
Classes of Offered Certificates resulting
from the distribution of the Principal
Distribution Amount (but not the Extra
Principal Distribution Amount) on such
Distribution Date, but prior to taking into
account any Applied Realized Loss
Amounts, Class A-3A Applied Realized Loss
Amounts or Class A-3B Applied Realized
Loss Amounts on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date on or after the Stepdown
Date on which a Trigger Event is not
in effect, the lesser of (x) the Principal
Remittance Amount for such
Distribution Date and (y) the excess, if
any, of (i) the Overcollateralization
Amount for such Distribution Date, assuming
that 100% of the Principal
Remittance Amount is applied as a principal
payment on the Offered Certificates
on such Distribution Date, over (ii) the
Targeted Overcollateralization Amount
for such Distribution Date. With respect to
any Distribution Date on which a
Trigger Event is in effect, the
Overcollateralization Release Amount will be
zero.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any
interest in such Certificate as the
Holder thereof and any other interest
therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth
or described in the Preliminary
Statement.
With respect to the Class CE Certificates and any Distribution
Date,
a per annum rate equal to the percentage
equivalent of a fraction, the numerator
of which is the sum of the amounts
calculated pursuant to clauses (A) through
(K) below, and the denominator of which is
the aggregate of the Uncertificated
Principal Balances of Regular Interest
LT1AA, Regular Interest LT1A1, Regular
Interest LT1A2, Regular Interest LT1A3A,
Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest
LT1B2, Regular Interest LT1B3 and Regular
Interest LT1ZZ. For purposes of
calculating the Pass-Through Rate for the
Class CE Certificates, the numerator
is equal to the sum of the following
components:
(A) the Lower-Tier Rate for Regular Interest LT1AA minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1AA;
(B) the Lower-Tier Rate for Regular Interest LT1A1 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1A1;
(C) the Lower-Tier Rate for Regular Interest LT1A2 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1A2;
(D) the Lower-Tier Rate for Regular Interest LT1A3A minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1A3A;
(E)
the Lower-Tier Rate for Regular Interest LT1A3B minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1A3B;
(F) the Lower-Tier Rate for Regular Interest LT1M1 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1M1;
(G) the Lower-Tier Rate for Regular Interest LT1M2 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1M2;
(H) the Lower-Tier Rate for Regular Interest LT1B1 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1B1;
(I) the Lower-Tier Rate for Regular Interest LT1B2 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1B2;
(J) the Lower-Tier Rate for Regular Interest LT1B3 minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1B3;
(K) the Lower-Tier Rate for Regular Interest LT1ZZ minus the
Marker
Rate, applied to an amount equal to the
Uncertificated Principal Balance of
Regular Interest LT1ZZ.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate (other than the Class
CE,
Class P and Class R Certificates), the
percentage obtained by dividing the
initial Certificate Balance of such
Certificate by the Initial Class Certificate
Balance of the Class of which such
Certificate is a part. With respect to the
Class CE, Class P and Class R Certificates,
the portion of the Class evidenced
thereby, expressed as a percentage, as
stated on the face of such Certificate;
provided, however, that the sum of all such
percentages for each such Class
totals 100%.
Periodic Advance: The payment required to be made by the
Servicer
with respect to any Distribution Date
pursuant to Section 3.21, the amount of
any such payment being equal to the
aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans
(including any REO Property) serviced by
such Servicer that were due on the related
Due Date and not received as of the
close of business on the related
Determination Date, less the aggregate amount
of any such delinquent payments that such
Servicer has determined would
constitute a Nonrecoverable Advance if
advanced.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate
for each Rate Adjustment Date specified
in the applicable Mortgage Note, if any,
and designated as such in the Mortgage
Loan Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United
States, FHLMC, FNMA or any agency or instrumentality of the
United
States
when such obligations are backed by the full faith and credit
of
the United
States; provided that such obligations of FHLMC or FNMA shall
be limited
to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or
mortgage
participation securities with yields evidencing extreme sensitivity
to the
rate of
principal payments on the underlying mortgages, which shall not
constitute
Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing
not more than one month from the date of acquisition thereof
with
a
corporation incorporated under the laws of the United States or
any
state
thereof rated not lower than "P-1" by Moody's and "A-1" by
S&P;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits
and bankers' acceptances (which shall each have an original
maturity
of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365
days or a
remaining maturity of more than 30 days) denominated in United
States
dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state
thereof,
rated not
lower than "P-1" by Moody's and "A-1" by S&P;
(iv) commercial paper (having original maturities of not more
than
365 days)
of any corporation incorporated under the laws of the United
States or
any state thereof which is rated not lower than "P-1" by
Moody's
and "A-1" by
S&P;
(v) investments in money market funds (including funds of the
Trustee or
its affiliates, or funds for which an affiliate of the Trustee
acts as
advisor, as well as funds for which the Trustee and its
affiliates
may
receive compensation) rated either "Aaa" by Moody's and "AAAm G"
by
S&P or
otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating
Agency and the NIMS Insurer and, as evidenced by an Opinion of
Counsel
obtained by the Trustee and addressed to the Depositor, will
not
affect the
qualification of the Trust Estate as two separate REMICs;
provided, however, that no instrument shall
be a Permitted Investment if it
represents either (a) the right to receive
only interest payments with respect
to the underlying debt instrument or (b)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision
thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a foreign government,
international organization or any agency or
instrumentality of either of the
foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by
Section 511 of the Code on unrelated
business taxable income) (except certain
farmers' cooperatives described in Code
Section 521), (iv) rural electric and
telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with
respect to whom the income on a
Residual Certificate is allocable to a
foreign permanent establishment or fixed
base, within the meaning of an applicable
income tax treaty, of such Person or
any other U.S. Person, and (vi) any other
Person so designated by the Trustee
based on an Opinion of Counsel to the
effect that any transfer to such Person
may cause the Trust or any other Holder of
a Residual Certificate to incur tax
liability that would not be imposed other
than on account of such transfer. The
terms "United States," "State" and
"international organization" shall have the
meanings set forth in Code Section 7701 or
successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Physical Certificates: The Class CE, Class P and Class R
Certificates.
Plan: As defined in Section 6.02(e).
Pool Cap: As of any Distribution Date and the Class M and Class
B
Certificates, a per annum rate equal to the
lesser of (i) 11.00% and (ii) a per
annum rate (subject to adjustment based on
the actual number of days elapsed in
the related Interest Accrual Period) equal
to the weighted average of the
Subgroup A Cap and the Subgroup B Cap (each
calculated without regard to clause
(i) of the definitions thereof), weighted
on the basis of the related Subgroup
Subordinate Amount.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal
Prepayment received during the calendar
month preceding such Distribution Date, the
amount, if any, by which one month's
interest at the related Mortgage Interest
Rate (net of the Servicing Fee Rate)
on such Principal Prepayment exceeds the
amount of interest paid in connection
with such Principal Prepayment.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer from a Mortgagor
in connection with any voluntary
Principal Prepayment in Full pursuant to
the terms of the related Mortgage Note
as from time to time held as a part of the
Trust Fund, the Prepayment Premiums
so held being identified in the Mortgage
Loan Schedule.
Primary Mortgage Insurance Policy: Each policy of primary
mortgage
guaranty insurance or any replacement
policy therefor with respect to any
Mortgage Loan, in each case issued by an
insurer acceptable to FNMA or FHLMC.
Principal Distribution Amount: As to any Distribution Date, the
sum
of (i) the Principal Remittance Amount
minus the Overcollateralization Release
Amount, if any, and (ii) the Extra
Principal Distribution Amount, if any.
Principal Prepayment: Any payment or other recovery of principal
on
a Mortgage Loan (other than Liquidation
Proceeds) which is received in advance
of its scheduled Due Date and is not
accompanied by an amount of interest
representing scheduled interest due on any
date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution
Date
and Mortgage Loans, to the extent of funds
available therefor, the sum (less
amounts available for reimbursement to the
Servicer of Advances and expenses
pursuant to this Agreement and amounts
reimbursable or payable to the Trustee
pursuant to this Agreement) of: (i) each
payment of principal on a Mortgage Loan
due on the Due Date in the month of such
Distribution Date and received by the
Servicer on or prior to the related
Determination Date, and any Advances with
respect thereto, (ii) all Principal
Prepayments received by the Servicer during
the prior calendar month, (iii) Insurance
Proceeds, net Liquidation Proceeds and
Recoveries allocable to principal actually
collected by the Servicer during the
prior calendar month, (iv) with respect to
Defective Mortgage Loans repurchased
with respect to the prior calendar month,
the portion of the Repurchase Price
allocable to principal, (v) any
Substitution Adjustment Amounts paid during the
prior calendar month and (vi) on the
Distribution Date on which the Mortgage
Loans and related REO Property are sold at
auction in accordance with Section
10.01 hereof, that portion of the
Termination Price in respect of principal.
Private Certificates: The Class CE, Class P and Class R
Certificates.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which date an adjustment to the Mortgage
Interest Rate of such Mortgage Loan
becomes effective under the related
Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note and
indicated on the Mortgage Loan Schedule.
Rating Agency: Each of Moody's and S&P. If either such
organization
or a successor is no longer in existence,
"Rating Agency" shall be such
nationally recognized statistical rating
organization, or other comparable
Person, as is designated by the Depositor,
notice of which designation shall be
given to the Trustee, the Servicer and the
NIMS Insurer. References herein to a
given rating or rating category of a Rating
Agency shall mean such rating
category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation,
equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as
of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest
Rate from the Due Date as to which
interest was last paid or advanced (and not
reimbursed) to Certificateholders up
to the Due Date in the month in which
Liquidation Proceeds are required to be
distributed on the Stated Principal Balance
of such Liquidated Mortgage Loan
from time to time, minus (iii) the
Liquidation Proceeds, if any, received during
the month in which such liquidation
occurred, to the extent applied as
recoveries of interest at the Net Mortgage
Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to
each Mortgage Loan that has become the
subject of a Deficient Valuation, if the
principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and
the principal balance of the Mortgage Loan
as reduced by the Deficient
Valuation. With respect to each Mortgage
Loan that has become the subject of a
Debt Service Reduction and any Distribution
Date, the amount, if any, by which
the principal portion of the related
Monthly Payment has been reduced.
Realized Loss Amortization Amount: Any of the Class A-3
Realized
Loss Amortization Amount, the Class M-1
Realized Loss Amortization Amount, the
Class M-2 Realized Loss Amortization
Amount, the Class B-1 Realized Loss
Amortization Amount, the Class B-2 Realized
Loss Amortization Amount or the
Class B-3 Realized Loss Amortization
Amount.
Record Date: With respect to the Class A, Class M and Class B
Certificates, the Business Day immediately
preceding such Distribution Date;
provided, however, that if any such Class
A, Class M and Class B Certificates
becomes a Definitive Certificate, the
Record Date for such Certificate shall be
the last Business Day of the month
immediately preceding the month in which the
related Distribution Date occurs and, with
respect to the Class CE, Class P and
Class R Certificates, the last Business Day
of the month immediately preceding
the month in which the related Distribution
Date occurs.
Recovery: As to any Distribution Date and Loan Subgroup, the sum
of
all amounts received during the calendar
month preceding the month of such
Distribution Date on each Mortgage Loan in
such Loan Subgroup subsequent to such
Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Regular Interest LT1AA: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1AA
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1A1: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1A1
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1A2: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1A2
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1A3A: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest
LT1A3A shall accrue interest at the
applicable Lower-Tier Rate and shall be
entitled to distributions of principal,
subject to the terms and conditions
hereof, in an aggregate amount equal to its
initial Uncertificated Principal
Balance as set forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT1A3B: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest
LT1A3B shall accrue interest at the
applicable Lower-Tier Rate and shall be
entitled to distributions of principal,
subject to the terms and conditions
hereof, in an aggregate amount equal to its
initial Uncertificated Principal
Balance as set forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT1M1: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1M1
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1M2: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1M2
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1B1: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1B1
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1B2: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1B2
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1B3: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1B3
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1GRP: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest
LT1GRP shall accrue interest at the
applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to
distributions of principal, subject to
the terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT1SUB: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest
LT1SUB shall accrue interest at the
applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to
distributions of principal, subject to
the terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT1XX: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1XX
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of Uncertificated
Lower-Tier Interest.
Regular Interest LT1ZZ: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest LT1ZZ
shall accrue interest at the applicable
Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
Regular Interest LT2GRP: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest
LT2GRP shall accrue interest at the
applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to
distributions of principal, subject to
the terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT2SUB: One of the separate non-certificated
beneficial ownership interests in the
Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the
Lower-Tier REMIC. Regular Interest
LT2SUB shall accrue interest at the
applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to
distributions of principal, subject to
the terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the definition of
Uncertificated Lower-Tier Interest.
Reimbursement Amount: As defined in Section 2.02.
Related Loan Subgroup: For Subgroup A, Loan Subgroup A, and for
Subgroup B, Loan Subgroup B.
Related Subgroup: For Loan Subgroup A, Subgroup A, and for Loan
Subgroup B, Subgroup B.
Relief Act: The
Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act or
comparable state legislation, the amount,
if any, by which (i) interest collectible
on such Mortgage Loan for the most
recently ended calendar month is less than
(ii) interest accrued pursuant to the
terms of the Mortgage Note on the same
principal amount and for the same period
as the interest collectible on such
Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code. "Each
REMIC" or "either REMIC" means each
of the Lower-Tier REMIC, and the Upper-Tier
REMIC.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is
defined in Section 2.06.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment
conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1
of the Code, and related provisions,
and regulations promulgated thereunder, as
the foregoing may be in effect from
time to time, as well as provisions of
applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m.
Eastern
time on the 18th calendar day of each
month, of if such day is not a Business
Day, the immediately preceding Business
Day.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or
deed-in-lieu of foreclosure in
connection with a defaulted Mortgage
Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased
on
any date pursuant to Section 2.02 or 2.04,
an amount equal to (a) in the case of
the Depositor or the Seller, the sum of (i)
the unpaid principal balance thereof
and (ii) the unpaid accrued interest
thereon at the applicable Mortgage Interest
Rate from the Due Date to which interest
was last paid by the Mortgagor to the
first day of the month following the month
in which such Mortgage Loan became
eligible to be repurchased and (b) in the
case of the Servicer, the sum of (i)
the Stated Principal Balance of the
Mortgage Loan, (ii) interest on such Stated
Principal Balance at the Mortgage Interest
Rate from the date on which interest
has last been paid and distributed through
the last day of the month in which
such repurchase takes place and (iii) any
costs and damages incurred by the
Trust in connection with any violation by
such repurchased Mortgage Loan of any
predatory or abusive lending law, less (x)
amounts received or advanced in
respect of such repurchased Mortgage Loan
which are being held in the Servicer
Custodial Account for distribution in the
month of repurchase and (y) if such
Servicer is servicing such Mortgage Loan
under this Agreement, the Servicing Fee
Rate for such Mortgage Loan.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on
behalf of the Trustee, substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be
maintained from time to time under this
Agreement in respect of such Mortgage
Loan.
Reserve Account: The trust account created and maintained by
the
Trustee pursuant to Section 3.09(f) which
shall be entitled the "Reserve
Account, Wells Fargo Bank, N.A., as
Trustee, in trust for registered Holders of
the Offered Certificates of the Banc of
America Funding Trust, Series 2005-C"
and which must be an Eligible Account.
Amounts on deposit in the Reserve Account
shall not be invested. The Reserve Account
shall not be an asset of either REMIC
formed under this Agreement.
Residual Certificate: The Class R Certificate.
Responsible Officer: Any officer of the Corporate Trust
Department
of the Trustee, including any Senior Vice
President, any Vice President, any
Assistant Vice President, any Assistant
Secretary, any Trust Officer or
Assistant Trust Officer, or any other
officer of the Trustee customarily
performing functions similar to those
performed by any of the above designated
officers and having responsibility for the
administration of this Agreement.
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., or any successor thereto.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest,
as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A Certificates and the Class R
Certificate.
Senior Enhancement Percentage: For any Distribution Date, the
percentage obtained by dividing (x) the sum
of (i) the aggregate Class
Certificate Balance of the Class M and
Class B Certificates before taking into
account the distribution of the Principal
Distribution Amount on such
Distribution Date and (ii) the
Overcollateralization Amount as of the prior
Distribution Date by (y) the aggregate
Stated Principal Balance of the Mortgage
Loans as of the due date in the month of
such Distribution Date.
Senior Specified Enhancement Percentage: On any date of
determination thereof, 17.30%.
Senior Principal Distribution Amount: With respect to any
Distribution Date, (i) before the Stepdown
Date or as to which a Trigger Event
is in effect, the lesser of (a) the
aggregate Class Certificate Balance of the
Class A Certificates immediately prior to
such Distribution Date and (b) the
Principal Distribution Amount and (ii) on
or after the Stepdown Date and as long
as a Trigger Event is not in effect, the
excess of (a) the aggregate Class
Certificate Balance of the Class A
Certificates immediately prior to such
Distribution Date over (b) the lesser of
(x) the product of (i) 82.70% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the Due Date
in the month of such Distribution Date and
(y) the amount by which the aggregate
Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month
of such Distribution Date exceeds the
product of (i) 0.50% and (ii) the Cut-off
Date Pool Principal Balance for the
Mortgage Loans.
Servicer: GreenPoint in its capacity as originator or servicer
of
the Mortgage Loans, or any successor
servicer appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Remittance Date.
Servicer's Certificate: The monthly reports required by Section
4.01.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by
GreenPoint pursuant to Section 3.09(a).
Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net
of any losses realized since the
preceding Distribution Date from Permitted
Investments of funds in the Servicer
Custodial Account.
Servicing Advances: All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred in the
performance by the Servicer of its
servicing obligations, including, but not
limited to (i) the preservation,
restoration and protection of a Mortgaged
Property, (ii) expenses reimbursable
to the Servicer pursuant to Section 3.15
and any enforcement or judicial
proceedings, including foreclosures, (iii)
the management and liquidation of any
REO Property and (iv) compliance with the
obligations under Section 3.13.
Servicing Agreement: The Flow Sale and Servicing Agreement, dated
as
of September 1, 2004, by and between Bank
of America, National Association and
GreenPoint Mortgage Funding, Inc., as
amended by that certain Amendment No. 1,
dated as of October 1, 2004, by and between
Bank of America, National
Association and GreenPoint Mortgage
Funding, Inc.
Servicing Compensation: With respect to each Distribution Date,
the
sum of (i) the aggregate Servicing Fee for
such Distribution Date subject to
reduction as provided in Section 3.18, (ii)
any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv)
the Servicer Custodial Account
Reinvestment Income for such Distribution
Date.
Servicing Fee: With respect to each Mortgage Loan and
Distribution
Date, the amount of the fee payable to the
Servicer, which shall, for such
Distribution Date, be equal to one-twelfth
of the product of the Servicing Fee
Rate with respect to such Mortgage Loan and
the Stated Principal Balance of such
Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the
same Stated Principal Balance and period
respecting which any related interest
payment on a Mortgage Loan is computed. The
Servicer's right to receive the
Servicing Fee is limited to, and payable
solely from, the interest portion
(including recoveries with respect to
interest from Liquidation Proceeds and
other proceeds, to the extent permitted by
Section 3.12) of related Monthly
Payments collected by the Servicer, or as
otherwise provided under Section 3.12.
Servicing Fee Rate: With respect to each Mortgage Loan, as set
forth
on the Mortgage Loan Schedule.
Servicing File: The items pertaining to a particular Mortgage
Loan
referred to in Exhibit P hereto, and any
additional documents required to be
added to the Servicing File pursuant to the
Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and
servicing of the Mortgage Loans whose
name appears on a list of servicing
officers furnished to the Trustee and the
Custodian by such Servicer, as such list
may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses of
the
Trustee related to any termination of the
Servicer, appointment of a successor
Servicer or the transfer and assumption of
servicing by the Trustee (including,
without limitation, (i) all legal costs and
expenses and all due diligence costs
and expenses associated with an evaluation
of the potential termination of the
Servicer as a result of an event of default
by such Servicer and (ii) any costs
or expenses associated with the complete
transfer of all servicing data and the
completion, correction or manipulation of
such servicing data as may be required
by the Trustee to correct any errors or
insufficiencies in the servicing data or
otherwise to enable the Trustee to service
the Mortgage Loans properly and
effectively).
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage
Loan as of such date as specified in
the amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason of any
moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments
and Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date
and irrespective of any delinquency in
payment by the related Mortgagor, and
after giving effect to any Deficient
Valuation.
Stepdown Date: The earlier to occur of (i) the Distribution Date
on
which the aggregate Class Certificate
Balance of the Class A Certificates is
reduced to zero and (ii) the later to occur
of (x) the Distribution Date in May
2008 and (y) the Distribution Date on which
the Senior Enhancement Percentage is
greater than or equal to the Senior
Specified Enhancement Percentage.
Sub-Account 1: The sub-account of the Distribution Account
designated by the Trustee pursuant to
Section 3.09(e).
Sub-Account 2: The sub-account of the Distribution Account
designated by the Trustee pursuant to
Section 3.09(e).
Subgroup: Any of Subgroup A or Subgroup B.
Subgroup A: The Class A-1 and the Class A-3A Component.
Subgroup A Cap: As of any Distribution Date and Subgroup A, a
per
annum rate equal to the lesser of (i)
11.00% and (ii) the Net WAC for the
Subgroup A Mortgage Loans (subject to
adjustment based on the actual number of
days elapsed in the related Interest
Accrual Period).
Subgroup A Interest Remittance Amount: As of any Distribution
Date,
the sum, without duplication, of (i) all
interest due and collected or advanced
with respect to the payments due on the
Subgroup A Mortgage Loans on the Due
Date in the calendar month in which such
Distribution Date occurs and received
by the Servicer on or prior to the
Determination Date for such Distribution Date
(less the Trustee Fees and Servicing Fees
for such Mortgage Loans, amounts
available for reimbursement of Advances
pursuant to this Agreement and expenses
and indemnities reimbursable pursuant to
this Agreement), (ii) all Compensating
Interest paid by the Servicer for such
Distribution Date with respect to the
Subgroup A Mortgage Loans, (iii) the
portion of any payment in connection with
any Principal Prepayment, substitution,
Repurchase Price, Insurance Proceeds or
net Liquidation Proceeds relating to
interest with respect to such Mortgage
Loans received during the prior calendar
month, (iv) on the Distribution Date on
which the Subgroup A Mortgage Loans and
related REO Property are sold at auction
in accordance with Section 10.01 hereof,
that portion of the Termination Price
in respect of interest and (v) any
Reimbursement Amount relating to the Subgroup
A Mortgage Loans received during the prior
calendar month.
Subgroup A Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-1
hereto.
Subgroup A Principal Percentage: With respect to any
Distribution
Date and Subgroup A, the percentage
equivalent of a fraction, the numerator of
which is the portion of the Principal
Remittance Amount for such Distribution
Date allocable to the Subgroup A Mortgage
Loans and the denominator of which is
the Principal Remittance Amount for such
Distribution Date.
Subgroup B: The Class A-2 and the Class A-3B Component.
Subgroup B Cap: As of any Distribution Date and Subgroup B, a
per
annum rate equal to the lesser of (i)
11.00% and (ii) the Net WAC for the
Subgroup B Mortgage Loans (subject to
adjustment based on the actual number of
days elapsed in the related Interest
Accrual Period).
Subgroup B Interest Remittance Amount: As of any Distribution
Date,
the sum, without duplication, of (i) all
interest due and collected or advanced
with respect to the payments due on the
Subgroup B Mortgage Loans on the Due
Date in the calendar month in which such
Distribution Date occurs and received
by the Servicer on or prior to the
Determination Date for such Distribution Date
(less the Trustee Fees and Servicing Fees
for such Mortgage Loans, amounts
available for reimbursement of Advances
pursuant to this Agreement and expenses
and indemnities reimbursable pursuant to
this Agreement), (ii) all Compensating
Interest paid by the Servicer for such
Distribution Date with respect to the
Subgroup B Mortgage Loans, (iii) the
portion of any payment in connection with
any Principal Prepayment, substitution,
Repurchase Price, Insurance Proceeds or
net Liquidation Proceeds relating to
interest with respect to such Mortgage
Loans received during the prior calendar
month, (iv) on the Distribution Date on
which the Subgroup B Mortgage Loans and
related REO Property are sold at auction
in accordance with Section 10.01 hereof,
that portion of the Termination Price
in respect of interest and (v) any
Reimbursement Amount relating to the Subgroup
B Mortgage Loans received during the prior
calendar month.
Subgroup B Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-2
hereto.
Subgroup B Principal Percentage: With respect to any
Distribution
Date and Subgroup B, the percentage
equivalent of a fraction, the numerator of
which is the portion of the Principal
Remittance Amount for such Distribution
Date allocable to the Subgroup B Mortgage
Loans and the denominator of which is
the Principal Remittance Amount for such
Distribution Date.
Subgroup Subordinate Amount: With respect to any Distribution
Date
and any Loan Subgroup, the excess of the
aggregate Stated Principal Balance of
the Mortgage Loans in such Loan Subgroup
over the sum of the Class Certificate
Balance of the Class A Certificates of the
Related Subgroup and the Component
Balance of the Component of the Related
Subgroup immediately prior to such date.
Subordinate Balance Ratio: As of any date of determination, the
ratio between the Uncertificated Principal
Balances of Regular Interest LT1SUB
and Regular Interest LT2SUB, equal to the
ratio between the Subgroup Subordinate
Amount for Loan Subgroup A and the Subgroup
Subordinate Amount for Loan Subgroup
B.
Subordinate Certificates: The Class M Certificates, the Class B
Certificates and the Class CE
Certificates.
Subservicer: Any Person with which the Servicer has entered into
a
Subservicing Agreement and which satisfies
the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in
the
event the Subservicer is an affiliate of
the Servicer, need not be in writing)
between the Servicer and any Subservicer
relating to servicing and/or
administration of certain Mortgage Loans as
provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the
date of such substitution (i) have a
Stated Principal Balance, after deduction
of the principal portion of the
Monthly Payment due in the month of
substitution, not in excess of the Stated
Principal Balance of the Defective Mortgage
Loan; (ii) have a Net Mortgage
Interest Rate not less than and not more
than 2% greater than that of the
Defective Mortgage Loan; (iii) be of the
same type as the Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not
higher than that of the Defective
Mortgage Loan; (v) have a Gross Margin not
less than that of the Defective
Mortgage Loan; (vi) have a credit grade not
lower in quality than that of the
Defective Mortgage Loan; (vii) have a
Periodic Cap and Rate Ceiling equal to
that of the Defective Mortgage Loan; (viii)
have the same Index and frequency of
Mortgage Interest Rate Adjustment as the
Defective Mortgage Loan; (ix) have a
remaining term to maturity not greater than
(and not more than one year less
than) that of the Defective Mortgage Loan;
and (x) comply with each Mortgage
Loan representation and warranty set forth
in the Servicing Agreement, the
Mortgage Loan Purchase Agreement and this
Agreement relating to the Defective
Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a
Defective Mortgage Loan if such Substitute
Mortgage Loans meet the foregoing
attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Targeted Overcollateralization Amount: As of any Distribution
Date,
(x) prior to the Stepdown Date, 0.80% of
the Cut-off Date Pool Principal Balance
and (y) on and after the Stepdown Date, (i)
if a Trigger Event has not occurred,
the greater of (A) 1.60% of the aggregate
Stated Principal Balance of the
Mortgage Loans as of Due Date in the month
of such Distribution Date and (B)
0.50% of the Cut-off Date Pool Principal
Balance and (ii) if a Trigger Event has
occurred, the Targeted
Overcollateralization Amount for the immediately
preceding Distribution Date.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner
provided under Treasury Regulations
Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on
the
Moneyline Telerate Service (or such other
page as may replace the Telerate Page
3750 page on that service for the purpose
of displaying London interbank offered
rates of major banks).
Termination Auction: As defined in Section 10.01 hereof.
Termination Price: As defined in Section 10.01 hereof.
Trigger Event: With respect to any Distribution Date, if (i)
the
three-month rolling average of 60+ Day
Delinquent Loans equals or exceeds 40.00%
of the Senior Enhancement Percentage or
(ii) the aggregate amount of Realized
Losses since the Cut-off Date through the
Due Date in the month of such
Distribution Date (reduced by the aggregate
amount of Recoveries received since
the Cut-off Date through the Due Date in
the month of such Distribution Date)
divided by the Cut-off Date Pool Principal
Balance exceeds the applicable
percentages set forth below with respect to
such Distribution Date:
Distribution Date Occurring In
Percentage
------------------------------
----------
May 2007
through April 2008
0.50%
May 2008
through April 2009
0.80%
May 2009
through April 2010
1.20%
May 2010
through April 2011
1.55%
May 2011
and thereafter
1.80%
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S.
Department of the Treasury.
Trust: The trust created by this Agreement, which shall be
named
"Banc of America Funding 2005-C Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created
hereby and to be administered hereunder,
with respect to a portion of which two
REMIC elections are to be made, such
entire Trust Estate consisting of: (i) such
Mortgage Loans as from time to time
are subject to this Agreement, together
with the Mortgage Files relating
thereto, and together with all collections
thereon and proceeds thereof, (ii)
any REO Property, together with all
collections thereon and proceeds thereof,
(iii) the Trustee's rights with respect to
the Mortgage Loans under all
insurance policies required to be
maintained pursuant to this Agreement and any
proceeds thereof, (iv) the Depositor's
rights under the Servicing Agreement and
the Mortgage Loan Purchase Agreement
(including any security interest created
thereby), (v) the Trustee's rights under
the Yield Maintenance Agreements and
(vi) the Servicer Custodial Account, the
Distribution Account and the Reserve
Account and such assets that are deposited
therein from time to time and any
investments thereof, together with any and
all income, proceeds and payments
with respect thereto.
Trustee: Wells Fargo Bank, N.A., and its successors-in-interest
and,
if a successor trustee is appointed
hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date and Mortgage Loan, an
amount equal to one-twelfth of the Trustee
Fee Rate multiplied by the aggregate
Stated Principal Balance of the Mortgage
Loan immediately following the Due Date
in the month preceding the month in which
such Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0045%
per
annum.
Uncertificated Accrued Interest: With respect to each
Uncertificated
Lower-Tier Interest on each Distribution
Date, an amount equal to one month's
interest at the applicable Lower-Tier Rate
on the Uncertificated Principal
Balance of such Regular Interest. In each
case, Uncertificated Accrued Interest
will be reduced by any Prepayment Interest
Shortfalls and Relief Act Interest
Shortfalls (allocated to such Regular
Interests based on their respective
entitlements to interest irrespective of
any Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls for such
Distribution Date).
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.09 hereof. Any of the
Regular Interest LT1AA, Regular Interest
LT1A1, Regular Interest LT1A2, Regular
Interest LT1A3A, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular
Interest LT1M2, Regular Interest LT1B1,
Regular Interest LT1B2, Regular Interest
LT1B3, Regular Interest LT1GRP, Regular
Interest LT1SUB, Regular Interest LT1XX,
Regular Interest LT1ZZ, Regular Interest
LT2GRP and Regular Interest LT2SUB are
Uncertificated Lower-Tier Interests. The
Uncertificated Lower-Tier Interests
shall have the following original
Uncertificated Principal Balances as of the
Closing Date:
Designation
Initial Uncertificated Balance
--------------------------------------------------------------------------------
LT1AA
$242,726,948.11
--------------------------------------------------------------------------------
LT1A1
$1,476,510.00
--------------------------------------------------------------------------------
LT1A3A
$164,060.00
--------------------------------------------------------------------------------
LT1A2
$559,790.00
--------------------------------------------------------------------------------
LT1A3B
$62,200.00
--------------------------------------------------------------------------------
LT1M1
$71,825.00
--------------------------------------------------------------------------------
LT1M2
$54,490.00
--------------------------------------------------------------------------------
LT1B1
$39,630.00
--------------------------------------------------------------------------------
LT1B2
$12,385.00
--------------------------------------------------------------------------------
LT1B3
$16,100.00
--------------------------------------------------------------------------------
LT1ZZ
$2,496,621.19
--------------------------------------------------------------------------------
LT1SUB
$3,107.01
--------------------------------------------------------------------------------
LT1GRP
$35,918.41
--------------------------------------------------------------------------------
LT2SUB
$1,177.91
--------------------------------------------------------------------------------
LT2GRP
$13,617.71
--------------------------------------------------------------------------------
LT1XX
$247,626,738.27
--------------------------------------------------------------------------------
Uncertificated Principal Balance: The amount of any
Uncertificated
Lower-Tier Interest outstanding as of any
date of determination. As of the
Closing Date, the Uncertificated Balance of
each Uncertificated Lower-Tier
Interest shall equal the amount set forth
in the definition of "Uncertificated
Lower-Tier Interest" hereto as its initial
uncertificated balance. On each
Distribution Date, the Uncertificated
Principal Balance of each Uncertificated
Lower-Tier Regular Interest shall be
reduced by all distributions of principal
made on such Uncertificated Lower-Tier
Regular Interest on such Distribution
Date pursuant to Section 5.09 and, if and
to the extent necessary and
appropriate, shall be further reduced on
such Distribution Date by Realized
Losses as provided in Section 5.09(b) and
shall be increased by all Recoveries
allocated to such Lower-Tier Regular
Interest on such Distribution Date pursuant
to Section 5.09(c). The Uncertificated
Balance of Regular Interest LT1ZZ shall
be increased by interest deferrals as
provided in Section 5.09(a)(i). The
Uncertificated Principal Balance of each
Uncertificated Lower-Tier Regular
Interest shall never be less than zero.
Unpaid Realized Loss Amount: For the Class A-3A Component, the
Class
A-3B Component, the Class M-1 Certificates,
the Class M-2 Certificates, the
Class B-1 Certificates, the Class B-2
Certificates and the Class B-3
Certificates and as to any Distribution
Date, the excess of (x) the aggregate
Applied Realized Loss Amounts, Class A-3A
Applied Realized Loss Amounts or Class
A-3B Applied Realized Loss Amounts
allocated to such Class or Component for all
prior Distribution Dates over (y) the sum
of (a) the cumulative amount of any
Recoveries allocated to such Class or
Component and (b) the aggregate Realized
Loss Amortization Amounts with respect to
such Class or Component for all prior
Distribution Dates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the
Trustee pursuant to Section 3.09(e).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be
deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the
case of a partnership, Treasury
Regulations are adopted that provide
otherwise) created or organized in or under
the laws of the United States, any state
thereof or the District of Columbia,
including an entity treated as a
corporation or partnership for federal income
tax purposes, an estate whose income is
subject to United States federal income
tax regardless of its source, or a trust if
a court within the United States is
able to exercise primary supervision over
the administration of such trust, and
one or more such U.S. Persons have the
authority to control all substantial
decisions of such trust (or, to the extent
provided in applicable Treasury
Regulations, certain trusts in existence on
August 20, 1996 which are eligible
to elect to be treated as U.S.
Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. As of any date of
determination, (a) 1% of all Voting Rights
shall be allocated to the Holders of
the Class CE Certificates, (b) 1% of all
Voting Rights shall be allocated to the
Holders of the Class P Certificates, and
(c) the remaining Voting Rights shall
be allocated among Holders of the remaining
Classes of Certificates (other than
the Class R Certificates) in proportion to
the Certificate Balances of their
respective Certificates on such date. The
Class R Certificates shall have no
Voting Rights.
Yield Maintenance Agreements: Any of the eight yield
maintenance
agreements between the Trustee, on behalf
of the Trust, and the Yield
Maintenance Agreement Provider
substantially in the form attached hereto as
Exhibit P. The Yield Maintenance Agreements
shall not be an asset of either
REMIC formed under this Agreement.
Yield Maintenance Agreement Payment: For each Distribution Date
from
June 2005 through the Distribution Date in
April 2010, the amount the Yield
Maintenance Agreement Provider is obligated
to pay to the Trustee two Business
Days prior to such Distribution Date for
deposit into the Reserve Account equal
to the product of (a) the excess of the
lesser of (i) One-Month LIBOR and (ii)
11.00% over the applicable strike rate for
such Distribution Date, as set forth
on the applicable table in Exhibit P
hereto, (b) the cap notional amount for
such Distribution Date as set forth on the
table in Exhibit P hereto and (c) a
fraction, the numerator of which is the
actual number of days elapsed since the
previous Distribution Date to but excluding
the current Distribution Date and
the denominator of which is 360.
Yield Maintenance Agreement Provider: Bank of America, N.A. and
any
successor thereto.
Section 1.02 Calculations. All dollar amounts calculated
hereunder
shall be rounded to the nearest penny with
one-half of one penny being rounded
down.
Section 1.03 Rights of the NIMS Insurer. Each of the rights of
the
NIMS Insurer set forth in this Agreement
shall exist so long as (i) the NIMS
Insurer has undertaken to guarantee certain
payments of notes issued pursuant to
the Indenture and (ii) any series of notes
issued pursuant to the Indenture
remains outstanding or the NIMS Insurer is
owed amounts in respect of its
guarantee of payment on such notes;
provided, however, the NIMS Insurer shall
not have any rights hereunder (except
pursuant to Section 11.01 in the case of
clause (ii) below) during the period of
time, if any, that (i) the NIMS Insurer
has not undertaken to guarantee certain
payments of notes issued pursuant to the
Indenture or (ii) any default has occurred
and is continuing under the insurance
policy issued by the NIMS Insurer with
respect to such notes.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and
delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to
the Trustee on behalf of the Trust
for the benefit of the Certificateholders,
without recourse, all the right,
title and interest of the Depositor in and
to the Mortgage Loans, including all
interest and principal received on or with
respect to the Mortgage Loans (other
than payments of principal and interest due
and payable on the Mortgage Loans on
or before the Cut-off Date), and the
Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of
the Depositor as assignee of the
Seller with respect to the Seller's rights
under the Servicing Agreement. The
foregoing sale, transfer, assignment and
set over does not and is not intended
to result in a creation of an assumption by
the Trustee of any obligation of the
Depositor or any other Person in connection
with the Mortgage Loans or any
agreement or instrument relating thereto,
except as specifically set forth
herein.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to
the Trustee, or the Custodian on
behalf of the Trustee, for the benefit of
the Certificateholders, the following
documents or instruments with respect to
each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wells Fargo Bank,
N.A., as
trustee for holders of Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2005-C, without recourse,"
with
all
necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such
endorsement
being
sufficient to transfer all right, title and interest of the party
so
endorsing,
as noteholder or assignee thereof, in and to that Mortgage
Note) and,
in the case of any Mortgage Loan originated in the State of New
York
documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if
applicable, the consolidated Mortgage Note and the consolidated
Mortgage;
(ii) except as provided below, the original recorded Mortgage
with
evidence
of a recording thereon, or if any such Mortgage has not been
returned
from the applicable recording office or has been lost, or if
such
public
recording office retains the original recorded Mortgage, a copy
of
such
Mortgage certified by the Servicer (which may be part of a
blanket
certification) as being a true and correct copy of the
Mortgage;
(iii)
subject to the provisos at the end of this paragraph, a duly
executed
Assignment of Mortgage to "Wells Fargo Bank, N.A., as trustee
for
the
holders of Banc of America Funding Corporation Mortgage
Pass-Through
Certificates, Series 2005-C" (which may be included in a
blanket
assignment
or assignments), together with, except as provided below,
originals
of all interim recorded assignments of such mortgage or a copy
of such
interim assignment certified by the Servicer (which may be part
of
a blanket
certification) as being a true and complete copy of the
original
recorded
intervening assignments of Mortgage (each such assignment, when
duly and
validly completed, to be in recordable form and sufficient to
effect the
assignment of and transfer to the assignee thereof, under the
Mortgage
to which the assignment relates); provided that, if the related
Mortgage
has not been returned from the applicable public recording
office,
such Assignment of Mortgage may exclude the information to be
provided
by the recording office; and provided, further, if the related
Mortgage
has been recorded in the name of Mortgage Electronic
Registration
Systems,
Inc. ("MERS") or its designee, no Assignment of Mortgage in
favor
of the
Trustee will be required to be prepared or delivered and
instead,
the
Servicer shall take all actions as are necessary to cause the Trust
to
be shown
as the owner of the related Mortgage Loan on the records of
MERS
for
purposes of the system of recording transfers of beneficial
ownership
of
mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) any of (A) the original or duplicate original mortgagee
title
insurance
policy and all riders thereto; (B) a title search showing no
lien
(other than standard exceptions) on the Mortgaged Property senior
to
the lien
of the Mortgage or (C) an opinion of counsel of the type
customarily rendered in the applicable jurisdiction in lieu of a
title
insurance
policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording
indicated thereon, or, if the lease is in the process of being
recorded,
a photocopy of the lease, certified by an officer of the
respective
prior owner of such Mortgage Loan or by the applicable title
insurance
company, closing/settlement/escrow agent or company or closing
attorney
to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage
or
equivalent
document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the
originals
of the
following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if
any;
(F) The executed UCC-1 financing statement with evidence
of recording thereon; and
(G) Executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to
the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
provided, however, that on the Closing
Date, with respect to item (iii), if an
Assignment of Mortgage is required to be
recorded as set forth below, the
Depositor has delivered to the Trustee, or
the Custodian on behalf of the
Trustee, a copy of such Assignment of
Mortgage in blank rather than in the name
of the Trustee and has caused the Servicer
to retain the completed Assignment of
Mortgage for recording as described below,
unless such Mortgage has been
recorded in the name of MERS or its
designee. In addition, if the Depositor is
unable to deliver or cause the delivery of
any original Mortgage Note due to the
loss of such original Mortgage Note, the
Depositor may deliver a copy of such
Mortgage Note, together with a lost note
affidavit, and shall thereby be deemed
to have satisfied the document delivery
requirements of this Section 2.01(b). As
set forth on Exhibit J attached hereto is a
list of all states where recordation
is required by any Rating Agency to obtain
the initial ratings of the
Certificates. The Trustee may rely and
shall be protected in relying upon the
information contained in such Exhibit
J.
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim
recorded assignments, (C) all
assumption, modification, consolidation or
extension agreements, if any, or (D)
the lender's title policy, if any (together
with all riders thereto), satisfying
the requirements of clause (ii), (iii),
(iv) or (v) above, respectively,
concurrently with the execution and
delivery hereof because such document or
documents have not been returned from the
applicable public recording office in
the case of clause (ii), (iii) or (iv)
above, or because the title policy, if
any, has not been delivered to any of the
Servicer, the Seller or the Depositor
by the applicable title insurer in the case
of clause (v) above, the Depositor
shall promptly deliver or cause to be
delivered to the Trustee, or the Custodian
on behalf of the Trustee, in the case of
clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such
assumption, modification,
consolidation or extension agreement, as
the case may be, with evidence of
recording indicated thereon upon receipt
thereof from the public recording
office, but in no event shall any such
delivery of any such documents or
instruments be made later than one year
following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv)
above, there has been a continuing delay
at the applicable recording office or, in
the case of clause (v) above, there
has been a continuing delay at the
applicable insurer and the Depositor has
delivered the Officer's Certificate to such
effect to the Trustee. The Depositor
shall forward or cause to be forwarded to
the Trustee, or the Custodian on
behalf of the Trustee, from time to time
(1) additional original documents
evidencing an assumption or modification of
a Mortgage Loan and (2) any other
documents required to be delivered by the
Depositor or the Servicer to the
Trustee. In the event that the original
Mortgage is not delivered and in
connection with the payment in full of the
related Mortgage Loan the public
recording office requires the presentation
of a "lost instruments affidavit and
indemnity" or any equivalent document,
because only a copy of the Mortgage can
be delivered with the instrument of
satisfaction or reconveyance, the Depositor
shall prepare, execute and deliver or cause
to be prepared, executed and
delivered, on behalf of the Trust, such a
document to the public recording
office.
As promptly as practicable subsequent to such transfer and
assignment, the Servicer shall (except for
any Mortgage which has been recorded
in the name of MERS or its designee) (I)
cause each Assignment of Mortgage to be
in proper form for recording in the
appropriate public office for real property
records within 30 days of the Closing Date
and (II) at the Depositor's expense,
cause to be delivered for recording in the
appropriate public office for real
property records the Assignments of the
Mortgages to the Trustee, except that,
with respect to any Assignment of a
Mortgage as to which the Servicer has not
received the information required to
prepare such assignment in recordable form,
the Servicer's obligation to do so and to
deliver the same for such recording
shall be as soon as practicable after
receipt of such information and in any
event within 30 days after the receipt
thereof; provided, however, no recording
of an Assignment of Mortgage will be
required in a state if either (i) the
Depositor furnishes to the Trustee an
unqualified Opinion of Counsel reasonably
acceptable to the Trustee to the effect
that recordation of such assignment is
not necessary under applicable state law to
preserve the Trustee's interest in
the related Mortgage Loan against the claim
of any subsequent transferee of such
Mortgage Loan or any successor to, or
creditor of, the Depositor or the
originator of such Mortgage Loan or (ii)
the recordation of an Assignment of
Mortgage in such state is not required by
any Rating Agency in order to obtain
the initial ratings on the Certificates on
the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of
delivering the above documents to
the Trustee, or the Custodian on behalf of
the Trustee, will cause the Servicer
to deposit in the Servicer Custodial
Account the portion of such payment that is
required to be deposited in such Servicer
Custodial Account pursuant to Section
3.09.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following
paragraph, the Trustee declares that
it, or the Custodian as its agent, will
hold the documents referred to in
Section 2.01 and the other documents
delivered to it constituting the Mortgage
Files, and that it will hold such other
assets as are included in the Trust
Estate delivered to it, in trust for the
exclusive use and benefit of all
present and future Certificateholders. Upon
execution and delivery of this
document, the Trustee shall deliver, or
shall cause the Custodian to deliver, to
the Depositor, the Trustee and the NIMS
Insurer a certification in the form of
Exhibit K hereto (the "Initial
Certification") to the effect that, except as may
be specified in a list of exceptions
attached thereto, it has received the
original Mortgage Note relating to each of
the Mortgage Loans listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, or shall cause
the Custodian to review, the Mortgage
Files in its possession, and shall deliver
to the Depositor, the Trustee and the
NIMS Insurer a certification in the form of
Exhibit L hereto (the "Final
Certification") to the effect that, as to
each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be
specified in a list of exceptions
attached to such Final Certification, such
Mortgage File contains all of the
items required to be delivered pursuant to
Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a
Mortgage File which does not meet the
requirements of Section 2.01 or is omitted
from such Mortgage File or if the
Depositor, the Servicer, the Trustee or the
NIMS Insurer discovers a breach by
the Servicer or the Seller of any
representation, warranty or covenant under the
Servicing Agreement or the Mortgage Loan
Purchase Agreement in respect of any
Mortgage Loan and such breach materially
adversely affects the interest of the
Certificateholders in the related Mortgage
Loan (provided that any such breach
that causes the Mortgage Loan not to be a
"qualified mortgage" within the
meaning of Section 860G(a)(3) of the code
shall be deemed to materially and
adversely affect the interests of the
Certificateholders), then such party shall
promptly so notify the Seller or the
Servicer, the Trustee, the NIMS Insurer and
the Depositor of such failure to meet the
requirements of Section 2.01 or of
such breach and request that the Depositor,
the Servicer or the Seller, as the
case may be, deliver such missing
documentation or cure such defect or breach
within 90 days of its discovery or its
receipt of notice of any such failure to
meet the requirements of Section 2.01 or of
such breach. If the Depositor, the
Seller or the Servicer, as the case may be,
does not deliver such missing
document or cure such defect or breach in
all material respects during such
period, the Trustee shall enforce the
obligation of the Depositor, the Servicer
or Seller, as the case may be, under this
Agreement, the Servicing Agreement or
the Mortgage Loan Purchase Agreement, as
applicable, and cause the Depositor,
the Servicer or the Seller to either (a) in
the case of the Seller only,
substitute for the related Mortgage Loan a
Substitute Mortgage Loan, which
substitution shall be accomplished in the
manner and subject to the conditions
set forth below or (b) purchase such
Mortgage Loan from the Trust at the
Repurchase Price for such Mortgage Loan;
provided, however, that in no event
shall such a substitution occur more than
two years from the Closing Date;
provided, further, that such substitution
or repurchase must occur within 90
days of when such defect was discovered if
such defect will cause the Mortgage
Loan not to be a "qualified mortgage"
within the meaning of Section 860G(a)(3)
of the Code.
In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported
genuineness of any such document and any
signature thereon. It is understood that
the scope of the Trustee's or the
Custodian's review of the Mortgage Files is
limited solely to confirming that
the documents listed in Section 2.01 have
been received and further confirming
that any and all documents delivered
pursuant to Section 2.01 appear on their
face to have been executed and relate to
the Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon
the review of items (i) and (xi) in the
definition of Mortgage Loan Schedule.
Neither the Trustee nor the Custodian
shall have any responsibility for
determining whether any document is valid and
binding, whether the text of any assignment
or endorsement is in proper or
recordable form, whether any document has
been recorded in accordance with the
requirements of any applicable
jurisdiction, or whether a blanket assignment is
permitted in any applicable
jurisdiction.
In the event of a discovery of a breach of any representation
or
warranty of the Servicer or the Seller, the
Trustee shall enforce the rights of
the Trust under the Servicing Agreement and
the Mortgage Loan Purchase Agreement
for the benefit of the Certificateholders.
In the event of a breach of the
representations or warranties with respect
to the Mortgage Loans set forth in
the Servicing Agreement, the Trustee shall
enforce the right of the Trust to be
indemnified for such breach of
representation or warranty. In addition, if a
breach of a representation set forth in
clauses (k) and (o) of paragraph 3 of
the Mortgage Loan Purchase Agreement occurs
as a result of a violation of an
applicable predatory or abusive lending
law, the Trustee shall enforce the right
of the Trust to reimbursement by the Seller
for all costs or damages incurred by
the Trust as a result of the violation of
such law (such amount, the
"Reimbursement Amount"), but, in the case
of a breach of a representation set
forth in clauses (k) and (o) of paragraph
3, only to the extent the Servicer
does not so reimburse the Trust. It is
understood and agreed that, except for
any indemnification provided in the
Servicing Agreement and the payment of any
Reimbursement Amount, the obligation of the
Servicer or the Seller to cure or to
repurchase (or substitute, in the case of
the Seller) any Mortgage Loan as to
which a document is missing, a material
defect in a constituent document exists
or as to which such a breach has occurred
and is continuing shall constitute the
sole remedies against the Servicer or the
Seller in respect of such omission,
defect or breach available to the Trustee
on behalf of the Certificateholders.
It is understood and agreed that the representations and
warranties
set forth in the Mortgage Loan Purchase
Agreement shall survive delivery of the
Mortgage Files to the Trustee, or the
Custodian on behalf of the Trustee, and
shall inure to the benefit of the
Certificateholders notwithstanding any
restrictive or qualified endorsement or
assignment. With respect to the
representations and warranties set forth in
the Mortgage Loan Purchase Agreement
that are made to the best of the Seller's
knowledge or as to which the Seller
had no knowledge, if it is discovered by
the Depositor, the NIMS Insurer or the
Trustee that the substance of such
representation or warranty is inaccurate and
such inaccuracy materially and adversely
affects the interest of the
Certificateholders in the related Mortgage
Loan then, notwithstanding the
Seller's lack of knowledge with respect to
the substance of such representation
or warranty being inaccurate at the time
the representation or warranty was
made, such inaccuracy shall be deemed a
breach of the applicable representation
or warranty.
The representations and warranties of the Servicer with respect
to
the Mortgage Loans in the Servicing
Agreement, which have been assigned to the
Trustee hereunder, were made as of the date
specified in the Servicing
Agreement. To the extent that any fact,
condition or event with respect to a
Mortgage Loan constitutes a breach of both
(i) a representation or warranty of
the Servicer under the Servicing Agreement
and (ii) a representation or warranty
of the Seller under the Mortgage Loan
Purchase Agreement, the only right or
remedy of the Trustee or of any
Certificateholder shall be the Trustee's right
to enforce the obligations of the Servicer
under any applicable representation
or warranty made by it. The Trustee
acknowledges that the Seller shall have no
obligation or liability with respect to any
breach of a representation or
warranty made by it with respect to the
Mortgage Loans if the fact, condition or
event constituting such breach also
constitutes a breach of a representation or
warranty made by the Servicer in the
Servicing Agreement, without regard to
whether the Servicer fulfills its
contractual obligations in respect of such
representation or warranty. The Trustee
further acknowledges that the Depositor
shall have no obligation or liability with
respect to any breach of any
representation or warranty with respect to
the Mortgage Loans (except as set
forth in Section 2.04) under any
circumstances.
With
respect to each Substitute Mortgage Loan, the Seller shall
deliver to the Trustee, or the Custodian on
behalf of the Trustee, for the
benefit of the Certificateholders, the
Mortgage Note, the Mortgage, the related
Assignment of Mortgage (except for any
Mortgage which has been recorded in the
name of MERS or its designee), and such
other documents and agreements as are
otherwise required by Section 2.01, with
the Mortgage Note endorsed and the
Mortgage assigned as required by Section
2.01. No substitution is permitted to
be made in any calendar month after the
Determination Date for such month.
Monthly Payments due with respect to any
such Substitute Mortgage Loan in the
month of substitution shall not be part of
the Trust Estate. For the month of
substitution, distributions to
Certificateholders will include the Monthly
Payment due for such month on any Defective
Mortgage Loan for which the Seller
has substituted a Substitute Mortgage
Loan.
The Servicer shall amend the Mortgage Loan Schedule for the
benefit
of the Certificateholders to reflect the
removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the
substitution of the Substitute Mortgage
Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule
to the NIMS Insurer, the Trustee and the
Custodian. Upon such substitution, each
Substitute Mortgage Loan shall be subject
to the terms of this Agreement in all
respects, and the Servicer shall be deemed
to have made to the Trustee with
respect to such Substitute Mortgage Loan,
as of the date of substitution, the
representations and warranties made
pursuant to the Servicing Agreement. Upon
any such substitution and the remittance to
the Trustee for deposit to the
Distribution Account of any required
Substitution Adjustment Amount (as
described in the next paragraph) and
receipt of a Request for Release, the
Trustee shall, or the Custodian on behalf
of the Trustee upon receipt of written
notice from the Trustee of such deposit
shall, release the Mortgage File
relating to such Defective Mortgage Loan to
the Seller and shall execute and
deliver at the Seller's direction such
instruments of transfer or assignment
prepared by the Seller, in each case
without recourse, as shall be necessary to
vest title in the Seller, or its designee,
to the Trustee's interest in any
Defective Mortgage Loan substituted for
pursuant to this Section 2.02.
For any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Defective
Mortgage Loans, the amount (if any) by
which the aggregate principal balance of
all such Substitute Mortgage Loans as
of the date of substitution is less than
the aggregate Stated Principal Balance
of all such Defective Mortgage Loans (after
application of the principal portion
of the Monthly Payments due in the month of
substitution) (the "Substitution
Adjustment Amount") plus an amount equal to
the aggregate of any unreimbursed
Advances with respect to such Defective
Mortgage Loans shall be remitted to the
Trustee for deposit to the Distribution
Account by the Seller on or before the
Remittance Date for the Distribution Date
in the month succeeding the calendar
month during which the related Mortgage
Loan is required to be purchased or
replaced hereunder. The Repurchase Price of
any repurchase and the Substitution
Adjustment Amount, if any, shall be
remitted to the Trustee for deposit to the
Distribution Account.
The Trustee, or the Custodian on behalf of the Trustee, shall
retain
possession and custody of each Mortgage
File in accordance with and subject to
the terms and conditions set forth herein.
The Servicer shall cause to be
promptly delivered to the Trustee, or the
Custodian on behalf of the Trustee,
upon the execution or, in the case of
documents requiring recording, receipt
thereof, the originals of such other
documents or instruments constituting the
Mortgage File as come into such Servicer's
possession from time to time.
The Trustee, or the Custodian on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect,
review or examine any such
documents, instruments, certificates or
other papers to determine that they are
genuine, enforceable, or appropriate for
the represented purpose or that they
are other than what they purport to be on
their face or (ii) to determine
whether any Mortgage File should include
any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii)
and (ix).
The Trustee is hereby directed to execute and deliver, on behalf
of
the Trust, the Yield Maintenance
Agreements.
Section 2.03 Representations, Warranties and Covenants of the
Servicer.
(a) GreenPoint hereby makes the following representations and
warranties to the Depositor, the NIMS
Insurer and the Trustee, as of the Closing
Date:
(i) GreenPoint is a corporation duly organized, validly existing
and
in good
standing under the laws of the State of New York and has all
licenses
necessary to carry on its business as now being conducted and
is
licensed,
qualified and in good standing in each state where a Mortgaged
Property
is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted
by
GreenPoint, and in any event
GreenPoint is in compliance with the laws of
any such
state to the extent necessary to ensure the enforceability of
the
related
Mortgage Loan and the servicing of such Mortgage Loan in
accordance
with the terms of this Agreement; GreenPoint has the full
corporate
power and authority to execute and deliver this Agreement and
to
perform in
accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be
delivered
pursuant
to this Agreement) by GreenPoint and the consummation of the
transactions contemplated hereby have been duly and validly
authorized;
this
Agreement evidences the valid, binding and enforceable obligation
of
GreenPoint; and all requisite corporate action has been taken
by
GreenPoint
to make this Agreement valid and binding upon GreenPoint in
accordance
with its terms.
(ii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of GreenPoint.
(iii) Neither the execution and delivery of this Agreement or
the
transactions contemplated hereby, nor the fulfillment of or
compliance
with the
terms and conditions of this Agreement will conflict with or
result in
a breach of any of the terms, articles of incorporation or
by-laws or
any legal restriction or any agreement or instrument to which
GreenPoint
is now a party or by which it is bound, or constitute a default
or result
in the violation of any law, rule, regulation, order, judgment
or decree
to which GreenPoint or its property is subject, or impair the
value of
the Mortgage Loans.
(iv) GreenPoint is an approved seller/servicer of conventional
residential mortgage loans for Fannie Mae or Freddie Mac, with
the
facilities, procedures, and experienced personnel necessary for the
sound
servicing
of mortgage loans of the same type as the Mortgage Loans.
GreenPoint
is a HUD approved mortgagee pursuant to Section 203 of the
National
Housing Act and is in good standing to sell mortgage loans to
and
service
mortgage loans for Fannie Mae or Freddie Mac, and no event has
occurred,
including but not limited to a change in insurance coverage,
which
would make GreenPoint unable to comply with Fannie Mae or
Freddie
Mac
eligibility requirements or which would require notification to
either
Fannie Mae
or Freddie Mac.
(v) GreenPoint does not believe, nor does it have any reason or
cause to
believe, that it cannot perform each and every covenant
contained
in this
Agreement.
(vi) There is no action, suit, proceeding or investigation
pending
or to its
knowledge threatened against GreenPoint which, either in any
one
instance
or in the aggregate, may result in any material adverse change
in
the
business, operations, financial condition, properties or assets
of
GreenPoint, or in any
material impairment of the right or ability of
GreenPoint
to carry on its business substantially as now conducted, or in
any
material liability on the part of GreenPoint, or which would draw
into
question
the validity of this Agreement or of any action taken or to be
contemplated herein, or which would be likely to impair materially
the
ability of
GreenPoint to perform under the terms of this Agreement.
(vii) No consent, approval, authorization or order of any court
or
governmental agency or body is required for the execution, delivery
and
performance by GreenPoint of or compliance by GreenPoint with
this
Agreement
as evidenced by the consummation of the transactions
contemplated by this Agreement, or if required, such approval has
been
obtained
prior to the Closing Date.
(viii) Neither this Agreement nor any statement, report or
other
document
prepared and furnished by or on behalf of GreenPoint or to be
prepared
and furnished by or on behalf of GreenPoint pursuant to this
Agreement
or in connection with the transactions contemplated hereby
contains
any untrue material statement of fact or omits to state a
material
fact necessary to make the statements contained therein not
misleading.
(ix) There has been no material adverse change in the business,
operations, financial condition or assets of GreenPoint since the
date of
GreenPoint's most recent financial statements.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the Mortgage
Files to the Trustee, or the
Custodian on behalf of the Trustee, for the
benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as
to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee and
the
NIMS Insurer with respect to the Mortgage
Loans or each Mortgage Loan, as the
case may be, as of the date hereof or such
other date set forth herein that as
of the Closing Date:
(i) Immediately prior to the transfer and assignment
contemplated
herein,
the Depositor was the sole owner and holder of the Mortgage
Loans.
The
Mortgage Loans were not assigned or pledged by the Depositor and
the
Depositor
had good and marketable title thereto, and the Depositor had
full right
to transfer and sell the Mortgage Loans to the Trustee free and
clear of
any encumbrance, participation interest, lien, equity, pledge,
claim or
security interest and had full right and authority subject to
no
interest
or participation in, or agreement with any other party to sell
or
otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right,
title and interest in the Mortgage Loans to the Trustee on
behalf
of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred
the
Mortgage
Loans to the Trustee on behalf of the Trust with any intent to
hinder,
delay or defraud an of its creditors.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall
survive delivery of the respective Mortgage
Files to the Trustee, or the Custodian on
behalf of the Trustee, and shall inure
to the benefit of the Trustee,
notwithstanding any restrictive or qualified
endorsement or assignment.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates Certificates (other than
the Class A-3, Class P and Class R
Certificates) and the Components as
"regular interests" and the Class UR
Interest as the single class of "residual
interest" in the Upper-Tier REMIC for
the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively. The
Depositor hereby further designates the
Uncertificated Lower-Tier Interests as
classes of "regular interests" and the
Class LR Interest as the single class of
"residual interest" in the Lower-Tier REMIC
for the purposes of Code Sections
860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each
REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest
possible maturity date" of the regular
interests in each REMIC is May 20, 2035.
Section 2.08 Execution and Delivery of Certificates. The
Trustee
acknowledges the issuance of and hereby
declares that it holds the
Uncertificated Lower-Tier Interests on
behalf of the Upper-Tier REMIC and the
holders of Certificates (other than the
Class P and Class R Certificates) and
the Class R Certificate (in respect of the
Class UR Interest), and (ii) has
executed and delivered to or upon the order
of the Depositor, in exchange for
the Mortgage Loans, the Uncertificated
Lower-Tier Interests, together with all
other assets included in the definition of
"Trust Estate," receipt of which is
hereby acknowledged, Certificates in
authorized denominations which, together
with the Uncertificated Lower Tier
Interests, evidence ownership of the entire
Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on
behalf
of the Certificateholders, GreenPoint shall
service and administer the Mortgage
Loans, in accordance with the terms of this
Agreement, Customary Servicing
Procedures, applicable law and the terms of
the Mortgage Notes and Mortgages. In
connection with such servicing and
administration, the Servicer shall have full
power and authority, acting alone and/or
through Subservicers as provided in
Section 3.02, to do or cause to be done any
and all things that it may deem
necessary or desirable in connection with
such servicing and administration
including, but not limited to, the power
and authority, subject to the terms
hereof, (a) to execute and deliver, on
behalf of the Certificateholders and the
Trustee, customary consents or waivers and
other instruments and documents, (b)
to consent, with respect to the Mortgage
Loans it services, to transfers of any
Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages
(but only in the manner provided in this
Agreement), (c) to collect any
Insurance Proceeds and other Liquidation
Proceeds relating to the Mortgage Loans
it services, and (d) to effectuate
foreclosure or other conversion of the
ownership of the Mortgaged Property
securing any Mortgage Loan it services. The
Servicer shall represent and protect the
interests of the Trust in the same
manner as it protects its own interests in
mortgage loans in its own portfolio
in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not
make or permit any modification, waiver or
amendment of any term of any Mortgage
Loan, except as provided pursuant to
Section 3.22. Without limiting the
generality of the foregoing, the Servicer,
in its own name or in the name of any
Subservicer or the Depositor and the
Trustee, is hereby authorized and empowered
by the Depositor and the Trustee, when such
Servicer or any Subservicer, as the
case may be, believes it appropriate in its
reasonable judgment, to execute and
deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any
of them, any and all instruments of
satisfaction or cancellation, or of partial
or full release or discharge, and all other
comparable instruments, with respect
to the Mortgage Loans it services, and with
respect to the related Mortgaged
Properties held for the benefit of the
Certificateholders. The Servicer shall
prepare and deliver to the Depositor and/or
the Trustee such documents requiring
execution and delivery by any or all of
them as are necessary or appropriate to
enable the Servicer to service and
administer the Mortgage Loans it services to
the extent that the Servicer is not
permitted to execute and deliver such
documents pursuant to the preceding
sentence. Upon receipt of such documents,
the Depositor and/or the Trustee, upon the
direction of the Servicer, shall
promptly execute such documents and deliver
them to the Servicer.
In accordance with the standards of the preceding paragraph,
the
Servicer shall advance or cause to be
advanced funds as necessary for the
purpose of effecting the payment of taxes
and assessments on the Mortgaged
Properties relating to the Mortgage Loans
it services, which Servicing Advances
shall be reimbursable in the first instance
from related collections from the
Mortgagors pursuant to Section 3.10, and
further as provided in Section 3.13.
The costs incurred by the Servicer, if any,
in effecting the timely payments of
taxes and assessments on the Mortgaged
Properties and related insurance premiums
shall not, for the purpose of calculating
monthly distributions to the
Certificateholders, be added to the Stated
Principal Balances of the related
Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement)
to the Trustee under this Agreement
is intended by the parties to be that of an
independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of
the
Servicer.
(a) The Servicer may arrange for the subservicing of any
Mortgage
Loan it services by a Subservicer pursuant
to a Subservicing Agreement;
provided, however, that such subservicing
arrangement and the terms of the
related Subservicing Agreement must provide
for the servicing of such Mortgage
Loan in a manner consistent with the
servicing arrangements contemplated
hereunder. Notwithstanding the provisions
of any Subservicing Agreement, any of
the provisions of this Agreement relating
to agreements or arrangements between
the Servicer and a Subservicer or reference
to actions taken through a
Subservicer or otherwise, the Servicer
shall remain obligated and liable to the
Depositor, the Trustee and the
Certificateholders for the servicing and
administration of the Mortgage Loans it
services in accordance with the
provisions of this Agreement without
diminution of such obligation or liability
by virtue of such Subservicing Agreements
or arrangements or by virtue of
indemnification from the Subservicer and to
the same extent and under the same
terms and conditions as if the Servicer
alone were servicing and administering
those Mortgage Loans. All actions of any
Subservicer performed pursuant to the
related Subservicing Agreement shall be
performed as agent of the Servicer with
the same force and effect as if performed
directly by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed
to
have received any collections, recoveries
or payments with respect to the
Mortgage Loans it services that are
received by a Subservicer regardless of
whether such payments are remitted by the
Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the Servicer,
for
the benefit of the Trustee and the
Certificateholders, shall use its best
reasonable efforts to enforce the
obligations of each Subservicer engaged by the
Servicer under the related Subservicing
Agreement, to the extent that the
non-performance of any such obligation
would have a material and adverse effect
on a Mortgage Loan. Such enforcement,
including, without limitation, the legal
prosecution of claims, termination of
Subservicing Agreement and the pursuit of
other appropriate remedies, shall be in
such form and carried out to such an
extent and at such time as the Servicer, in
its good faith business judgment,
would require were it the owner of the
related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at
its own expense, and shall be
reimbursed therefor only (i) from a general
recovery resulting from such
enforcement to the extent, if any, that
such recovery exceeds all amounts due in
respect of the related Mortgage Loan or
(ii) from a specific recovery of costs,
expenses or attorneys fees against the
party against whom such enforcement is
directed.
(d) Any Subservicing Agreement entered into by the Servicer
shall
provide that it may be assumed or
terminated by the Trustee, if the Trustee has
assumed the duties of the Servicer, or any
successor Servicer, at the Trustee's
or successor Servicer's option, as
applicable, without cost or obligation to the
assuming or terminating party or the Trust
Estate, upon the assumption by such
party of the obligations of the Servicer
pursuant to Section 8.05.
Any Subservicing Agreement, and any other transactions or
services
relating to the Mortgage Loans involving a
Subservicer, shall be deemed to be
between the Servicer and such Subservicer
alone, and the Trustee and the
Certificateholders shall not be deemed
parties thereto and shall have no claims
or rights of action against, rights,
obligations, duties or liabilities to or
with respect to the Subservicer or its
officers, directors or employees, except
as set forth in Section 3.01.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Servicer shall maintain, at its own
expense, a blanket fidelity bond and an
errors and omissions insurance policy, with
broad coverage on all officers,
employees or other persons acting in any
capacity requiring such persons to
handle funds, money, documents or papers
relating to the Mortgage Loans it
services. These policies must insure the
Servicer against losses resulting from
dishonest or fraudulent acts committed by
the Servicer's personnel, any
employees of outside firms that provide
data processing services for the
Servicer, and temporary contract employees
or student interns. Such fidelity
bond shall also protect and insure the
Servicer against losses in connection
with the release or satisfaction of a
Mortgage Loan without having obtained
payment in full of the indebtedness secured
thereby. No provision of this
Section 3.03 requiring such fidelity bond
and errors and omissions insurance
shall diminish or relieve the Servicer from
its duties and obligations as set
forth in this Agreement. The minimum
coverage under any such bond and insurance
policy shall be at least equal to the
corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC in the
FHLMC Sellers' & Servicers' Guide,
as amended or restated from time to time,
or in an amount as may be permitted to
the Servicer by express waiver of FNMA or
FHLMC. In the event that any such
policy or bond ceases to be in effect, the
Servicer shall obtain a comparable
replacement policy or bond from an insurer
or issuer, meeting the requirements
set forth above as of the date of such
replacement.
Section 3.04 Access to Certain Documentation.
The Servicer shall provide to the OCC, the OTS, the FDIC and to
comparable regulatory authorities
supervising Holders of Certificates and the
examiners and supervisory agents of the
OCC, the OTS, the FDIC and such other
authorities, access to the documentation
required by applicable regulations of
the OCC, the OTS, the FDIC and such other
authorities with respect to the
Mortgage Loans. Such access shall be
afforded without charge, but only upon
reasonable and prior written request and
during normal business hours at the
offices designated by the Servicer. Nothing
in this Section 3.04 shall limit the
obligation of the Servicer to observe any
applicable law and the failure of the
Servicer to provide access as provided in
this Section 3.04 as a result of such
obligation shall not constitute a breach of
this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
With respect to each Mortgage Loan with a Loan-to-Value Ratio
in
excess of 80% or such other Loan-to-Value
Ratio as may be required by law, the
Servicer shall, without any cost to the
Trust Estate, maintain or cause the
Mortgagor to maintain in full force and
effect a Primary Mortgage Insurance
Policy insuring that portion of the
Mortgage Loan in excess of a percentage in
conformity with FNMA requirements. The
Servicer shall pay or shall cause the
Mortgagor to pay the premium thereon on a
timely basis, at least until the
Loan-to-Value Ratio of such Mortgage Loan
is reduced to 80% or such other
Loan-to-Value Ratio as may be required by
law. If such Primary Mortgage
Insurance Policy is terminated, the
Servicer shall obtain from another insurer a
comparable replacement policy, with a total
coverage equal to the remaining
coverage of such terminated Primary
Mortgage Insurance Policy. If the insurer
shall cease to be an insurer acceptable to
FNMA, the Servicer shall notify the
Trustee in writing, it being understood
that the Servicer shall not have any
responsibility or liability for any failure
to recover under the Primary
Mortgage Insurance Policy for such reason.
If the Servicer determines that
recoveries under the Primary Mortgage
Insurance Policy are jeopardized by the
financial condition of the insurer, the
Servicer shall obtain from another
insurer which meets the requirements of
this Section 3.05 a replacement
insurance policy. The Servicer shall not
take any action that would result in
noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss
that, but for the actions of the Servicer,
would have been covered thereunder.
In connection with any assumption or
substitution agreement entered into or to
be entered into pursuant to Section 3.14,
the Servicer shall promptly notify the
insurer under the Primary Mortgage
Insurance Policy, if any, of such assumption
or substitution of liability in accordance
with the terms of such Primary
Mortgage Insurance Policy and shall take
all actions which may be required by
such insurer as a condition to the
continuation of coverage under such Primary
Mortgage Insurance Policy. If such Primary
Mortgage Insurance Policy is
terminated as a result of such assumption
or substitution of liability, the
Servicer shall obtain a replacement Primary
Mortgage Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer
agrees
to prepare and present, on behalf of
itself, the Trustee and the
Certificateholders, claims to the insurer
under any Primary Mortgage Insurance
Policy in a timely fashion in accordance
with the terms of such Primary Mortgage
Insurance Policy and, in this regard, to
take such action as shall be necessary
to permit recovery under any Primary
Mortgage Insurance Policy respecting a
defaulted Mortgage Loan. Pursuant to
Section 3.10(a), any amounts collected by
the Servicer under any Primary Mortgage
Insurance Policy shall be deposited in
the related Escrow Account, subject to
withdrawal pursuant to Section 3.10(b).
The Servicer will comply with all provisions of applicable state
and
federal law relating to the cancellation
of, or collection of premiums with
respect to, each Primary Mortgage Insurance
Policy, including, but not limited
to, the provisions of the Homeowners
Protection Act of 1998, and all regulations
promulgated thereunder, as amended from
time to time.
Section 3.06 Rights of the Depositor and the Trustee in Respect
of
the Servicer.
The Depositor may, but is not obligated to, enforce the
obligations
of the Servicer hereunder and may, but is
not obligated to, perform, or cause a
designee to perform, any defaulted
obligation of the Servicer hereunder and in
connection with any such defaulted
obligation to exercise the rights of the
Servicer hereunder; provided that the
Servicer shall not be relieved of any of
its obligations hereunder by virtue of such
performance by the Depositor or its
designee. Neither the Trustee nor the
Depositor shall have any responsibility or
liability for any action or failure to act
by the Servicer nor shall the Trustee
or the Depositor be obligated to supervise
the performance of the Servicer (or
any Subservicer) hereunder or
otherwise.
Section 3.07 Trustee to Act as Servicer.
If the Servicer shall for any reason no longer be the Servicer
hereunder (including by reason of an Event
of Default), the Trustee shall within
90 days of such time, assume, if it so
elects, or shall appoint a successor
Servicer to assume, all of the rights and
obligations of the Servicer hereunder
arising thereafter (except that the Trustee
shall not be (a) liable for losses
of the Servicer pursuant to Section 3.13 or
any acts or omissions of such
predecessor Servicer hereunder, (b)
obligated to make Advances if it is
prohibited from doing so by applicable law
or (c) deemed to have made any
representations and warranties of the
Servicer hereunder). Any such assumption
shall be subject to Sections 7.02 and 8.05.
If the Servicer shall for any reason
no longer be the Servicer (including by
reason of any Event of Default), the
Trustee or the successor Servicer may elect
to succeed to any rights and
obligations of the Servicer under each
Subservicing Agreement or may terminate
each Subservicing Agreement. If it has
elected to assume the Subservicing
Agreement, the Trustee or the successor
Servicer shall be deemed to have assumed
all of the Servicer's interest therein and
to have replaced the Servicer as a
party to any Subservicing Agreement entered
into by the Servicer as contemplated
by Section 3.02 to the same extent as if
the Subservicing Agreement had been
assigned to the assuming party except that
the Servicer shall not be relieved of
any liability or obligations under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall,
upon
request of the Trustee, but at the expense
of the predecessor Servicer, deliver
to the assuming party all documents and
records relating to each Subservicing
Agreement or substitute servicing agreement
and the Mortgage Loans then being
serviced thereunder and an accounting of
amounts collected or held by it and
otherwise use its best efforts to effect
the orderly and efficient transfer of
such Subservicing Agreement to the assuming
party. The Trustee shall be entitled
to be reimbursed from the predecessor
Servicer (or the Trust if the predecessor
Servicer is unable to fulfill its
obligations hereunder) for all Servicing
Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and
interest
on all Mortgage Loans are paid in full, the
Servicer will proceed diligently, in
accordance with this Agreement, to collect
all payments due under each of the
Mortgage Loans it services when the same
shall become due and payable. Further,
the Servicer will in accordance with all
applicable law and Customary Servicing
Procedures ascertain and estimate taxes,
assessments, fire and hazard insurance
premiums, mortgage insurance premiums and
all other charges with respect to the
Mortgage Loans it services that, as
provided in any Mortgage, will become due
and payable to the end that the
installments payable by the Mortgagors will be
sufficient to pay such charges as and when
they become due and payable.
Consistent with the foregoing, the Servicer
may in its discretion (i) waive any
late payment charge or any Prepayment
Premium or penalty interest in connection
with the prepayment of a Mortgage Loan it
services and (ii) extend the due dates
for payments due on a Mortgage Note for a
period not greater than 120 days;
provided, however, that the Servicer cannot
extend the maturity of any such
Mortgage Loan past the date on which the
final payment is due on the latest
maturing Mortgage Loan as of the Cut-off
Date. In the event of any such
arrangement, the Servicer shall make
Periodic Advances on the related Mortgage
Loan in accordance with the provisions of
Section 3.21 during the scheduled
period in accordance with the amortization
schedule of such Mortgage Loan
without modification thereof by reason of
such arrangements. The Servicer shall
not be required to institute or join in
litigation with respect to collection of
any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any
public or governmental authority with
respect to a taking or condemnation) if it
reasonably believes that enforcing the
provision of the Mortgage or other
instrument pursuant to which such payment
is required is prohibited by
applicable law.
Section 3.09 Collection of Mortgage Loan Payments; Servicer
Custodial Account, Distribution Account and
Reserve Account. (a) GreenPoint
shall establish and maintain a Servicer
Custodial Account. GreenPoint shall
deposit or cause to be deposited into the
Servicer Custodial Account, all on a
daily basis within one Business Day of
receipt, except as otherwise specifically
provided herein, the following payments and
collections remitted by Subservicers
or received by the Servicer in respect of
the Mortgage Loans subsequent to the
Cut-off Date (other than in respect of
principal and interest due on the
Mortgage Loans on or before the Cut-off
Date) and the following amounts required
to be deposited hereunder with respect to
the Mortgage Loans:
(i) all payments on account of principal of the Mortgage Loans,
including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net
of the
Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds,
other
than
Insurance Proceeds to be (1) applied to the restoration or repair
of
the
Mortgaged Property, (2) released to the Mortgagor in accordance
with
Customary
Servicing Procedures or (3) deposited to an Escrow Account
pursuant
to Section 3.10(a) and other than any Excess Proceeds and (B)
any
Insurance
Proceeds released from an Escrow Account pursuant to Section
3.10(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant
to
Section
3.09(c) in connection with any losses on Permitted Investments
with
respect to the Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant
to
Section
3.15 or any Prepayment Premiums required to be remitted by the
Servicer;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts
and
all
Reimbursement Amounts to the extent received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to
Section
3.21 and
any Compensating Interest;
(viii) any Recovery; and
(ix) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer
Custodial
Account by the Servicer shall be exclusive,
it being understood and agreed that,
without limiting the generality of the
foregoing, any Ancillary Income need not
be deposited by the Servicer. If the
Servicer shall deposit in the Servicer
Custodial Account any amount not required
to be deposited, it may at any time
withdraw or direct the institution
maintaining the Servicer Custodial Account to
withdraw such amount from the Servicer
Custodial Account, any provision herein
to the contrary notwithstanding. The
Servicer Custodial Account may contain
funds that belong to one or more trust
funds created for mortgage pass-through
certificates of other series and may
contain other funds respecting payments on
mortgage loans belonging to the Servicer or
serviced by the Servicer on behalf
of others; provided that such commingling
of funds with respect to the Servicer
shall not be permitted at any time during
which S&P's senior short-term
unsecured debt rating of the Servicer falls
below "A-2." Notwithstanding such
commingling of funds, the Servicer shall
keep records that accurately reflect
the funds on deposit in the Servicer
Custodial Account that have been identified
by it as being attributable to the Mortgage
Loans it services. The Servicer
shall maintain adequate records with
respect to all withdrawals made pursuant to
this Section 3.09. All funds required to be
deposited in the Servicer Custodial
Account shall be held in trust for the
Certificateholders until withdrawn in
accordance with Section 3.12.
(b) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution
Account, which shall be deemed to consist
of three sub-accounts. The Trustee shall,
promptly upon receipt, deposit in the
Distribution Account and retain therein the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant
to Section 3.12(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.09(c)
in
connection
with any losses on Permitted Investments with respect to the
Distribution Account; and
(iii) any other
amounts deposited hereunder which are required to be
deposited
in the Distribution Account.
If the Servicer shall remit any amount not required to be
remitted,
it may at any time direct the Trustee to
withdraw such amount from the
Distribution Account, any provision herein
to the contrary notwithstanding. Such
direction may be accomplished by delivering
an Officer's Certificate to the
Trustee which describes the amounts
deposited in error in the Distribution
Account. All funds required to be deposited
in the Distribution Account shall be
held by the Trustee in trust for the
Certificateholders until disbursed in
accordance with this Agreement or withdrawn
in accordance with Section 3.12. In
no event shall the Trustee incur liability
for withdrawals from the Distribution
Account at the direction of the
Servicer.
(c) Each institution at which the Servicer Custodial Account or
the
Distribution Account is maintained shall
invest the funds therein as directed in
writing by the Servicer (in the case of the
Servicer Custodial Account) or the
Trustee (in the case of the Distribution
Account) in Permitted Investments,
which shall mature not later than (i) in
the case of the Servicer Custodial
Account, the Business Day next preceding
the related Remittance Date (except
that if such Permitted Investment is an
obligation of the institution that
maintains such account, then such Permitted
Investment shall mature not later
than such Remittance Date) and (ii) in the
case of the Distribution Account, the
Business Day next preceding the
Distribution Date (except that if such Permitted
Investment is an obligation of the
institution that maintains such account, then
such Permitted Investment shall mature not
later than such Distribution Date)
and, in each case, shall not be sold or
disposed of prior to its maturity. All
such Permitted Investments shall be made in
the name of the Trustee, for the
benefit of the Certificateholders. All
Servicer Custodial Account Reinvestment
Income shall be for the benefit of the
Servicer as part of its Servicing
Compensation and shall be retained by it
monthly as provided herein. All income
or gain (net of any losses) realized from
any such investment of funds on
deposit in the Distribution Account shall
be for the benefit of the Trustee as
compensation for its duties hereunder and
shall be retained by it monthly as
provided herein. The amount of any losses
realized in the Servicer Custodial
Account or the Distribution Account
incurred in any such account in respect of
any such investments shall promptly be
deposited by the Servicer in the Servicer
Custodial Account or by the Trustee in the
Distribution Account, as applicable.
(d) The Servicer shall give notice to the Trustee and the NIMS
Insurer of any proposed change of the
location of the Servicer Custodial Account
not later than 30 days and not more than 45
days prior to any change thereof.
The Trustee shall give notice to the
Servicer, each Rating Agency, the NIMS
Insurer and the Depositor of any proposed
change of the location of the
Distribution Account not later than 30 days
after and not more than 45 days
prior to any change thereof. The creation
of the Servicer Custodial Account and
the Distribution Account shall be evidenced
by a certification substantially in
the form of Exhibit F hereto.
(e) The Trustee shall designate each of Sub-Account 1, Sub-Account
2
and the Upper-Tier Certificate Sub-Account
as a sub-account of the Distribution
Account. On each Distribution Date, the
Trustee shall, from funds available on
deposit in the Distribution Account (and
deemed on deposit in Sub-Account 1 and
Sub-Account 2, as applicable), be deemed to
deposit into the Upper-Tier
Sub-Account, the Lower-Tier Distribution
Amount.
(f) (i) The
Trustee shall establish and maintain the Reserve
Account, which account shall be held in
trust for the benefit of the Holders of
the Offered Certificates. The Trustee shall
deposit in the Reserve Account on
the date received by it, any Yield
Maintenance Agreement Payments received from
the Yield Maintenance Agreement Provider
for the related Distribution Date.
Funds on deposit in the Reserve Account
shall remain uninvested. On each
Distribution Date, the Trustee shall
withdraw from the Reserve Account any Yield
Maintenance Agreement Payments and apply
them in the following order of
priority:
(A) to the Offered Certificates, any remaining unpaid Cap
Carryover Amounts for such classes for such Distribution Date
(after
distributions pursuant to Section 5.02(c)(xix) hereof,
sequentially,
as follows:
(i) first, concurrently, to the Class A-1 and Class A-2
Certificates, pro rata (based on the Cap Carryover Amount for
each such Class);
(ii) second, concurrently, to the Class A-3A and Class
A-3B Components, pro rata (based on the Cap Carryover Amount
for each such Component); and
(iii) third, sequentially, to the Class M-1
Certificates, the Class M-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates, in that order; and
(B) to the Class CE Certificates, any remaining amounts on
deposit in the Reserve Account.
(ii) The Trustee shall account for the Reserve Account as an
asset
of the
Grantor Trust and not an asset of either REMIC created pursuant
to
this
Agreement. The beneficial owner of the Reserve Account is the
Class
CE
Certificateholder. For all federal tax purposes, amounts
transferred or
reimbursed
by the Upper-Tier REMIC to the Reserve Account shall be treated
as
distributions by the Trustee to the Class CE Certificateholder.
(iii) Any Cap Carryover Amounts paid by the Trustee pursuant to
this
Section
3.09(f) to the Offered Certificates shall be accounted for by
the
Trustee as
amounts paid first to the Class CE Certificates and then to the
Offered
Certificates from the Grantor Trust. In addition, the Trustee
shall
account for the Offered Certificates' rights to receive payments
of
Cap
Carryover Amounts as rights in limited recourse interest rate
cap
contracts
written by the Class CE Certificates in favor of the Offered
Certificates.
(g) For federal tax return and information reporting, the right
of
the Holders of the Offered Certificates to
receive payments under the Yield
Maintenance Agreements in respect of any
related Yield Maintenance Agreement
Payments shall be assigned a value of
zero.
(h) Any Prepayment Premiums deposited pursuant to Section
3.09(a)(v)
shall not be assets of either REMIC created
hereunder, but shall be considered
assets of the Grantor Trust held by the
Trustee for the benefit of the Class P
Certificateholders.
Section 3.10 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer
shall segregate and hold all funds
collected and received pursuant to each
Mortgage Loan which constitute Escrow
Payments in trust separate and apart from
any of its own funds and general
assets and for such purpose shall establish
and maintain one or more escrow
accounts (collectively, the "Escrow
Account"), titled "GreenPoint, in trust for
registered holders of Banc of America
Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-C and various
Mortgagors." The Escrow Account shall be
established with a commercial bank, a
savings bank or a savings and loan
association that meets the guidelines set
forth by FNMA or FHLMC as an eligible
institution for escrow accounts and which
is a member of the Automated Clearing
House. In any case, the Escrow Account
shall be insured by the FDIC to the
fullest extent permitted by law. The
Servicer shall deposit in the appropriate
Escrow Account on a daily basis, and retain
therein: (i) all Escrow Payments
collected on account of the Mortgage Loans,
(ii) all amounts representing
proceeds of any hazard insurance policy
which are to be applied to the
restoration or repair of any related
Mortgaged Property and (iii) all amounts
representing proceeds of any Primary
Mortgage Insurance Policy. Nothing herein
shall require the Servicer to compel a
Mortgagor to establish an Escrow Account
in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts
may
be made by the Servicer only (i) to effect
timely payment of taxes, assessments,
mortgage insurance premiums, fire and
hazard insurance premiums, condominium or
PUD association dues, or comparable items
constituting Escrow Payments for the
related Mortgage, (ii) to reimburse the
Servicer out of related Escrow Payments
made with respect to a Mortgage Loan for
any Servicing Advance made by the
Servicer pursuant to Section 3.10(c) with
respect to such Mortgage Loan, (iii)
to refund to any Mortgagor any sums
determined to be overages, (iv) for transfer
to the Servicer Custodial Account upon
default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan
and if permitted by applicable law,
(v) for application to restore or repair
the Mortgaged Property, (vi) to pay to
the Mortgagor, to the extent required by
law, any interest paid on the funds
deposited in the Escrow Account, (vii) to
pay to itself any interest earned on
funds deposited in the Escrow Account (and
not required to be paid to the
Mortgagor), (viii) to the extent permitted
under the terms of the related
Mortgage Note and applicable law, to pay
late fees with respect to any Monthly
Payment which is received after the
applicable grace period, (ix) to withdraw
suspense payments that are deposited into
the Escrow Account, (x) to withdraw
any amounts inadvertently deposited in the
Escrow Account or (xi) to clear and
terminate the Escrow Account upon the
termination of this Agreement in
accordance with Section 10.01. Any Escrow
Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan it services, the
Servicer
shall maintain accurate records reflecting
the status of taxes, assessments and
other charges which are or may become a
lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy
premiums and fire and hazard
insurance coverage. The Servicer shall
obtain, from time to time, all bills for
the payment of such charges (including
renewal premiums) and shall effect
payment thereof prior to the applicable
penalty or termination date and at a
time appropriate for securing maximum
discounts allowable, employing for such
purpose deposits of the Mortgagor in the
Escrow Account, if any, which shall
have been estimated and accumulated by the
Servicer in amounts sufficient for
such purposes, as allowed under the terms
of the Mortgage. To the extent that a
Mortgage does not provide for Escrow
Payments, the Servicer shall determine that
any such payments are made by the
Mortgagor. The Servicer assumes full
responsibility for the timely payment of
all such bills and shall effect timely
payments of all such bills irrespective of
each Mortgagor's faithful performance
in the payment of same or the making of the
Escrow Payments. The Servicer shall
advance any such payments that are not
timely paid, but the Servicer shall be
required so to advance only to the extent
that such Servicing Advances, in the
good faith judgment of the Servicer, will
be recoverable by the Servicer out of
Insurance Proceeds, Liquidation Proceeds or
otherwise.
Section 3.11 Access of Trustee and NIMS Insurer to Certain
Documentation and Information Regarding the
Mortgage Loans.
The Servicer shall
afford the Trustee and the NIMS Insurer
reasonable access to all records and
documentation regarding the Mortgage Loans
and all accounts, insurance information and
other matters relating to this
Agreement, such access being afforded
without charge, but only upon reasonable
request and during normal business hours at
the office designated by the
Servicer.
Section 3.12 Permitted Withdrawals from the Servicer Custodial
Account and the Distribution Account.
(a) The Servicer may from time to time make withdrawals from
the
Servicer Custodial Account, for the
following purposes:
(i) to pay itself (to the extent not previously retained), the
Servicing
Compensation to which it is entitled pursuant to Section 3.18;
(ii) to reimburse itself or the Trustee for unreimbursed
Advances
made by
it, such right of reimbursement pursuant to this clause (ii)
being
limited
first to amounts received on the Mortgage Loans in the related
Loan
Subgroup as the Mortgage Loans in respect of which any such
Advance
was made
and then limited to amounts received on all the Mortgage Loans;
(iii) to reimburse itself for any Nonrecoverable Advance
previously
made, such
right of reimbursement pursuant to this clause (iii) being
limited
first to amounts received on the Mortgage Loans in the same
Loan
Subgroup
as the Mortgage Loans in respect of which such Nonrecoverable
Advance
was made and then limited to amounts received on all the
Mortgage
Loans;
(iv) to reimburse itself for Insured Expenses from the related
Insurance
Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02, 2.04
or
3.15(b),
all amounts received thereon after the date of such purchase;
(vi) to reimburse itself or the Depositor for expenses incurred
by
any of
them and reimbursable pursuant to this Agreement, including but
not
limited
to, Section 3.02 and Section 7.03;
(vii) to withdraw any amount deposited in the Servicer
Custodial
Account
and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an
amount
equal to
the Interest Remittance Amount, the Principal Remittance Amount
and any
Monthly Excess Cashflow Amount for such Distribution Date, to
the
extent on
deposit, and remit such amount in immediately available funds
to
the
Trustee for deposit in the Distribution Account; and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for
the purpose of justifying any
withdrawal from the Servicer Custodial
Account pursuant to clauses (i), (ii),
(iv) and (v). The Servicer shall keep and
maintain such separate accounting for
each Mortgage Loan. Prior to making any
withdrawal from the Servicer Custodial
Account pursuant to clause (iii), the
Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing
Officer indicating the amount of any
previous Advance determined by the Servicer
to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s)
and their respective portions of such
Nonrecoverable Advance.
In connection with any failure by the Servicer to make any
remittance required to be made by the
Servicer to the Distribution Account on
the day and by the time such remittance is
required to be made under this
Agreement (without giving effect to any
grace or cure period), the Servicer
shall pay the Trustee for the account of
the Trustee interest at the rate
published in The Wall Street Journal as the
"Prime Rate" on any amount not
timely remitted from and including the day
such remittance was required to be
made to, but not including, the day on
which such remittance was actually made.
(b)The Trustee shall withdraw funds from the Distribution
Account
for distributions to Certificateholders in
the manner specified in this
Agreement. In addition, the Trustee may
from time to time make withdrawals from
the Distribution Account for the following
purposes:
(i) to pay to itself the Trustee Fee;
(ii) to pay to itself as additional compensation, earnings on
or
investment
income with respect to funds in the Distribution Account and
any other
amounts due to the Trustee (other than the Trustee Fee) under
this
Agreement for the related Distribution Date;
(iii) to withdraw and return to the Servicer any amount deposited
in
the
Distribution Account and not required to be deposited therein;
and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the
Distribution
Account and deemed to be on deposit in the
Upper-Tier Certificate Sub-Account
shall be used to make payments on the
Offered Certificates, the Class CE
Certificates and the Class R Certificate in
respect of the Class UR Interest as
provided in Section 5.02. The Distribution
Account shall be cleared and
terminated upon termination of this
Agreement pursuant to Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other
Insurance.
The Servicer shall cause to be maintained for each Mortgage
Loan,
fire and hazard insurance with extended
coverage customary in the area where the
Mortgaged Property is located in an amount
which is at least equal to the lesser
of (a) the full insurable value of the
Mortgaged Property or (b) the greater of
(i) the outstanding principal balance owing
on the Mortgage Loan and (ii) an
amount such that the proceeds of such
insurance shall be sufficient to avoid the
application to the Mortgagor or loss payee
of any coinsurance clause under the
policy. If the Mortgaged Property is in an
area identified in the Federal
Register by the Federal Emergency
Management Agency as having special flood
hazards (and such flood insurance has been
made available) the Servicer will
cause to be maintained a flood insurance
policy meeting the requirements of the
current guidelines of the Federal Insurance
Administration and the requirements
of FNMA or FHLMC. The Servicer shall also
maintain on REO Property, fire and
hazard insurance with extended coverage in
an amount which is at least equal to
the maximum insurable value of the
improvements which are a part of such
property, liability insurance and, to the
extent required, flood insurance in an
amount required above. Any amounts
collected by the Servicer under any such
policies (other than amounts to be
deposited in an Escrow Account and applied to
the restoration or repair of the property
subject to the related Mortgage or
property acquired in liquidation of the
Mortgage Loan, or to be released to the
Mortgagor in accordance with Customary
Servicing Procedures) shall be deposited
in the Servicer Custodial Account, subject
to withdrawal pursuant to Section
3.12(a). It is understood and agreed that
no earthquake or other additional
insurance need be required by the Servicer
of any Mortgagor or maintained on REO
Property, other than pursuant to such
applicable laws and regulations as shall
at any time be in force and as shall
require such additional insurance. All
policies required hereunder shall be
endorsed with standard mortgagee clauses
with loss payable to the Servicer, and
shall provide for at least 30 days prior
written notice of any cancellation,
reduction in amount or material change in
coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by
a
unit in a condominium development or
planned unit development shall be
maintained with respect to such Mortgage
Loan and the related development in a
manner which is consistent with FNMA
requirements.
Notwithstanding the foregoing, the Servicer may maintain a
blanket
policy insuring against hazard losses on
all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of
maintaining the required hazard
insurance policies for each Mortgage Loan
and may maintain a blanket policy
insuring against special flood hazards in
lieu of maintaining any required flood
insurance. Any such blanket policies shall
(A) be consistent with prudent
industry standards, (B) name the Servicer
as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid
principal balance on the related
Mortgage Loans without co-insurance, and
(D) otherwise comply with the
requirements of this Section 3.13. Any such
blanket policy may contain a
deductible clause; provided that if any
Mortgaged Property is not covered by a
separate policy otherwise complying with
this Section 3.13 and a loss occurs
with respect to such Mortgaged Property
which loss would have been covered by
such a policy, the Servicer shall deposit
in the Servicer Custodial Account the
difference, if any, between the amount that
would have been payable under a
separate policy complying with this Section
3.13 and the amount paid under such
blanket policy.
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.14, when any
Mortgaged Property subject to a Mortgage
has been conveyed by the Mortgagor, the
Servicer shall use reasonable efforts, to
the extent that it has actual
knowledge of such conveyance, to enforce
any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent
permitted under applicable law and
governmental regulations, but only to the
extent that such enforcement will not
adversely affect or jeopardize coverage
under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer
is not required to exercise such
rights with respect to a Mortgage Loan if
the Person to whom the related
Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the
terms and conditions contained in the
Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such
Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note
or Mortgage as a condition to such
transfer. If (i) the Servicer is prohibited
by law from enforcing any such
due-on-sale clause, (ii) coverage under any
Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note
does not include a due-on-sale
clause or (iv) nonenforcement is otherwise
permitted hereunder, the Servicer is
authorized, subject to Section 3.14(b), to
take or enter into an assumption and
modification agreement from or with the
Person to whom such Mortgaged Property
has been or is about to be conveyed,
pursuant to which such Person becomes
liable under the Mortgage Note and, unless
prohibited by applicable state law,
the Mortgagor remains liable thereon;
provided that the Mortgage Loan shall
continue to be covered (if so covered
before the Servicer enters such agreement)
by the applicable Required Insurance
Policies. The Servicer, subject to Section
3.14(b), is also authorized with the prior
approval of the insurers under any
Required Insurance Policies to enter into a
substitution of liability agreement
with such Person, pursuant to which the
original Mortgagor is released from
liability and such Person is substituted as
Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be
deemed to be in default under this Section
3.14 by reason
