EXHIBIT 4
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BANC OF AMERICA FUNDING CORPORATION,
as
Depositor,
WELLS FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 28, 2005
____________________________________________________
Mortgage Pass-Through Certificates
Series 2005-1F
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
Section 1.02 Interest
Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans.................................
Section 2.02
Acceptance by the Custodian of the Mortgage Loans............
Section 2.03
Representations, Warranties and Covenants of the Master
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
Designation of Start-up Day..................................
Section 2.07 REMIC
Certificate Maturity Date..............................
Section 2.08 Execution
and Delivery of Certificates.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master
Servicing of the Mortgage Loans.......................
Section 3.02
Monitoring of 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, the Securities Administrator and
the Trustee in Respect of the Master Servicer...............
Section 3.07 Trustee
to Act as Master Servicer............................
Section 3.08 Servicer
Custodial Account and Escrow Account................
Section 3.09
Collection of Mortgage Loan Payments; Master Servicer
Custodial Account; Certificate Account and Reserve Funds....
Section 3.10 Access to
Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted
Withdrawals from the Certificate Account and
the Master Servicer Custodial Account.......................
Section 3.12
Maintenance of Hazard Insurance and Other Insurance..........
Section 3.13
Presentment of Claims and Collection of Proceeds.............
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 Master
Servicer to be Held for the Trustee.........................
Section 3.18 Master
Servicer 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 Reports
to the Securities and Exchange Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master
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
Returns and Reports to Certificateholders................
Section 5.06 Tax
Matters Person...........................................
Section 5.07 Rights of
the Tax Matters Person in Respect of the
Securities Administrator....................................
Section 5.08 REMIC
Related Covenants......................................
Section 5.09
Determination of LIBOR.......................................
Section 5.10 Master
Servicer, Securities Administrator and Trustee
Indemnification.............................................
Section 5.11 Grantor
Trust Administration.................................
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 MASTER SERVICER
Section 7.01
Respective Liabilities of the Depositor and the Master
Servicer....................................................
Section 7.02 Merger or
Consolidation of the Depositor or the Master
Servicer....................................................
Section 7.03
Limitation on Liability of the Depositor, the Master
Servicer and Others.........................................
Section 7.04 Depositor
and Master 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 Master 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, THE CUSTODIAN AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of
Trustee and Securities Administrator...............
Section 9.02 Certain
Matters Affecting the Trustee and the Securities
Administrator...............................................
Section 9.03 Neither
Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee
and Securities Administrator May Own Certificates....
Section 9.05
Eligibility Requirements for Trustee and the Securities
Administrator...............................................
Section 9.06
Resignation and Removal of Trustee and the Securities
Administrator...............................................
Section 9.07 Successor
Trustee or Securities Administrator................
Section 9.08 Merger or
Consolidation of Trustee or Securities
Administrator...............................................
Section 9.09
Appointment of Co-Trustee or Separate Trustee................
Section 9.10
Authenticating Agents........................................
Section 9.11
Securities Administrator's Fees and Expenses, Custodian's
Fees and Expenses and Trustee's Fees and Expenses;
Indemnification.............................................
Section 9.12
[Reserved]...................................................
Section 9.13 Paying
Agents................................................
Section 9.14
Limitation of Liability......................................
Section 9.15 Trustee
or Securities Administrator 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......................................
EXHIBITS
Exhibit A-1-A-1 Form of Face of Class
1-A-1 Certificate
Exhibit A-1-A-2 Form of Face of Class
1-A-2 Certificate
Exhibit A-1-A-3 Form of Face of Class
1-A-3 Certificate
Exhibit A-1-A-4 Form of Face of Class
1-A-4 Certificate
Exhibit A-1-A-5 Form of Face of Class
1-A-5 Certificate
Exhibit A-1-A-6 Form of Face of Class
1-A-6 Certificate
Exhibit A-1-A-7 Form of Face of Class
1-A-7 Certificate
Exhibit A-1-A-8 Form of Face of Class
1-A-8 Certificate
Exhibit A-1-IO Form of Face of
Class 1-IO Certificate
Exhibit A-1-A-R Form of Face of Class
1-A-R Certificate
Exhibit A-2-A-1 Form of Face of Class
2-A-1 Certificate
Exhibit A-2-A-2 Form of Face of Class
2-A-2 Certificate
Exhibit A-2-A-3 Form of Face of Class
2-A-3 Certificate
Exhibit A-2-A-4 Form of Face of Class
2-A-4 Certificate
Exhibit A-2-A-5 Form of Face of Class
2-A-5 Certificate
Exhibit A-2-A-6 Form of Face of Class
2-A-6 Certificate
Exhibit A-2-A-7 Form of Face of Class
2-A-7 Certificate
Exhibit A-2-A-8 Form of Face of Class
2-A-8 Certificate
Exhibit A-3-A-1 Form of Face of Class
3-A-1 Certificate
Exhibit A-4-A-1 Form of Face of Class
4-A-1 Certificate
Exhibit A-CB-IO Form of Face of Class
CB-IO Certificate
Exhibit A-X-PO Form of Face of
Class X-PO Certificate
Exhibit B-1
Form of Face of Class B-1 Certificate
Exhibit B-2
Form of Face of Class B-2 Certificate
Exhibit B-3
Form of Face of Class B-3 Certificate
Exhibit B-4
Form of Face of Class B-4 Certificate
Exhibit B-5
Form of Face of Class B-5 Certificate
Exhibit B-6
Form of
Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates.....................
Exhibit D-1
Loan Group 1 Mortgage Loan Schedule.....................
Exhibit D-2
Loan Group 2 Mortgage Loan Schedule.....................
Exhibit D-3
Loan Group 3 Mortgage Loan Schedule.....................
Exhibit D-4
Loan Group 4 Mortgage Loan Schedule.....................
Exhibit E
Request for Release of Documents........................
Exhibit F
Form
of Certification of Establishment of Account.......
Exhibit G-1
Form of Transferor's Certificate........................
Exhibit G-2A Form
1 of Transferee's Certificate......................
Exhibit G-2B Form
2 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 of the Custodian..........
Exhibit L
Form of Final Certification of the Custodian............
Exhibit M
Form of Sarbanes-Oxley Certification....................
Exhibit N
Form of Securities Administrator's Certification........
Exhibit O
Class 1-A-1 Yield Maintenance Agreement.................
Exhibit P
Class 2-A-1 Yield Maintenance Agreement.................
Exhibit Q
Custodial Agreement.....................................
Exhibit R
Servicing Agreement.....................................
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 28, 2005,
is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION,
as depositor
(together with its permitted successors and assigns, the
"Depositor"), WELLS
FARGO BANK, N.A., as master servicer (together with its permitted
successors and
assigns, in such capacity, the "Master Servicer") and as
securities
administrator (together with its permitted successors and assigns,
in such
capacity, the "Securities Administrator"), and WACHOVIA BANK,
NATIONAL
ASSOCIATION, 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 Master Servicer, the Securities Administrator and
the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the Trust. The Trust Estate
for federal
income tax purposes shall be treated as three real estate mortgage
investment
conduits (the "Upper-Tier REMIC," the "Middle-Tier REMIC" and the
"Lower-Tier
REMIC," respectively, and each a "REMIC"). The Uncertificated
Lower-Tier
Interests will represent the "regular interests" and the Class LR
Interest shall
be the "residual interest" in the Lower-Tier REMIC for purposes of
the REMIC
Provisions. The Uncertificated Lower-Tier Interests shall
constitute the assets
of the Middle-Tier REMIC. The Uncertificated Middle-Tier Interests
shall
constitute the "regular interests" and the Class MR Interest shall
be the
"residual interest" in the Middle-Tier REMIC. The Uncertificated
Middle-Tier
Interests shall constitute the assets of the Upper-Tier REMIC. The
Senior
Certificates (other than the Class 1-A-R Certificate, the Class
CB-IO
Certificates, the Class X-PO Certificates and the rights of the
Class 1-A-1 and
Class 2-A-1 Certificates to receive amounts from the related
Reserve Fund), the
Components and the Class B Certificates are referred to
collectively as the
"Regular Certificates" and shall constitute "regular interests" in
the
Upper-Tier REMIC for purposes of the REMIC Provisions. The Class UR
Interest
shall be the "residual interest" in the Upper-Tier REMIC for
purposes of the
REMIC Provisions. The Class 1-A-R Certificate shall represent
beneficial
ownership of the Class LR Interest, the Class MR Interest and the
Class UR
Interest. The portion of the Trust Estate consisting of the Reserve
Funds, the
Yield Maintenance Agreements and the rights of the Class 1-A-1 and
Class 2-A-1
Certificates to receive amounts from the related Reserve Fund shall
not be
assets of any REMIC created hereunder, but rather shall be assets
of the Grantor
Trust. The "latest possible maturity date" for federal income tax
purposes of
all interests created hereby will be the REMIC Certificate Maturity
Date.
The following table sets forth characteristics of the
Certificates
and the Components, together with the minimum denominations and
integral
multiples in excess thereof in which the Classes of Certificates
shall be
issuable:
Initial Class
Integral
Certificate
Pass-
Multiples in
Balance or Through
Minimum
Excess
of
Classes
Notional Amount Rate
Denomination Minimum
-----------
--------------- ------- ------------
------------
Class 1-A-1
$106,138,000.00 (1)
$1,000
$1
Class 1-A-2
$106,138,000.00 (2)
$1,000,000
$1
Class 1-A-3
$16,561,000.00 5.750%
$1,000
$1
Class 1-A-4
$1,840,000.00 5.750%
$1,000
$1
Class 1-A-5
$20,651,000.00 5.750%
$1,000
$1
Class 1-A-6
$18,660,000.00 5.750%
$1,000
$1
Class 1-A-7
$8,364,000.00 5.750%
$1,000
$1
Class 1-A-8
$11,793,000.00 5.750%
$1,000
$1
Class 1-IO
$20,146,950.00 5.500%
$1,000,000
$1
Class 1-A-R
$100.00
5.750%
$100
N/A
Class 2-A-1
$70,000,000.00 (3)
$1,000
$1
Class 2-A-2
$70,000,000.00 (4)
$1,000,000
$1
Class 2-A-3
$23,603,000.00 5.750%
$1,000
$1
Class 2-A-4
$2,622,000.00 5.750%
$1,000 $1
Class 2-A-5
$19,916,000.00 5.750%
$1,000
$1
Class 2-A-6
$3,414,000.00 5.750%
$1,000
$1
Class 2-A-7
$2,886,000.00 5.750%
$1,000
$1
Class 2-A-8
$91,616,000.00 6.000%
$1,000
$1
Class 3-A-1
$120,439,000.00 6.500%
$1,000
$1
Class 4-A-1
$117,447,000.00 6.500%
$1,000
$1
Class CB-IO
$23,536,732.00 (5)
$1,000,000
$1
Class X-PO
$2,334,874.00
(6)
$25,000
$1
Class B-1
$25,119,000.00 (7)
$25,000
$1
Class B-2
$8,258,000.00
(7)
$25,000
$1
Class B-3
$4,817,000.00
(7)
$25,000
$1
Class B-4
$4,817,000.00
(7)
$25,000
$1
Class B-5
$4,130,000.00
(7)
$25,000
$1
Class B-6
$2,752,758.00
(7)
$25,000
$1
Class 2-IO
$8,210,829.20 5.500%
N/A
N/A
Class 3-IO
$5,069,069.60 5.500%
N/A
N/A
Class 4-IO
$10,256,833.20 5.500%
N/A
N/A
Class 1-PO
$422,573.50
(8)
N/A
N/A
Class 2-PO
$1,195,113.76
(8)
N/A
N/A
Class 3-PO
$528,792.74
(8)
N/A
N/A
Class 4-PO
$188,394.00
(8)
N/A
N/A
------------
(1) During the initial Interest Accrual Period, interest will
accrue on the
Class
1-A-1 Certificates at the rate of 5.010% per annum. During each
Interest
Accrual Period thereafter, interest will accrue on the Class
1-A-1
Certificates at a per annum rate equal to (i) 0.650% plus (ii)
LIBOR,
subject to
a minimum rate of 0.650% and a maximum rate of 5.750%.
(2) During the initial Interest Accrual Period, interest will
accrue on the
Class
1-A-2 Certificates at the rate of 0.740% per annum. During each
Interest
Accrual Period thereafter, interest will accrue on the Class
1-A-2
Certificates at a per annum rate equal to (i) 5.100% minus (ii)
LIBOR,
subject to
a minimum rate of 0.000% and a maximum rate of 5.100%.
(3) During the initial Interest Accrual Period, interest will
accrue on the
Class
2-A-1 Certificates at the rate of 5.010% per annum. During each
Interest
Accrual Period thereafter, interest will accrue on the Class
2-A-1
Certificates at a per annum rate equal to (i) 0.650% plus (ii)
LIBOR,
subject to
a minimum rate of 0.650% and a maximum rate of 5.750%.
(4) During the initial Interest Accrual Period, interest will
accrue on the
Class
2-A-2 Certificates at the rate of 0.740% per annum. During each
Interest
Accrual Period thereafter, interest will accrue on the Class
2-A-2
Certificates at a per annum rate equal to (i) 5.100% minus (ii)
LIBOR,
subject to
a minimum rate of 0.000% and a maximum rate of 5.100%.
(5) The Class CB-IO Certificates are Interest Only Certificates and
will be
deemed for
purposes of distributions of interest to consist of three
Components
described in the table: the Class 2-IO Component, the Class
3-IO
Component
and the Class 4-IO Component.
(6) The Class X-PO Certificates are Principal Only Certificates and
will be
deemed for
purposes of distributions of principal to consist of four
Components
described in the table: the Class 1-PO Component, the Class
2-PO
Component,
the Class 3-PO Component and the Class 4-PO Component.
(7) Interest will accrue on the Class B Certificates for each
Distribution Date
at a per
annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of (i) with respect to Loan
Group 1,
5.750%,
(ii) with respect to Loan Group 2, 5.857%, (iii) with respect
to
Loan Group
3, 6.500% and (iv) with respect to Loan Group 4, 6.500%.
(8) The Class 1-PO Component, Class 2-PO Component, Class 3-PO
Component and
Class 4-PO
Component are Principal Only Components and will not bear
interest.
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.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class (other than the Class CB-IO Certificates),
one month's
interest accrued during the related Interest Accrual Period at the
applicable
Pass-Through Rate on the applicable Class Certificate Balance or
Notional
Amount. For any Distribution Date and the Class CB-IO Certificates,
the sum of
the Accrued Component Interest for each Class IO Component.
Accrued Component Interest: For any Distribution Date and each
interest-bearing Component, one month's interest accrued during the
related
Interest Accrual Period at the applicable Pass-Through Rate on the
related
Notional Amount.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-off Date Pool Principal Balance of the Mortgage
Loans of such
Loan Group minus the sum of (i) all amounts in respect of principal
received in
respect of the Mortgage Loans in such Loan Group (including,
without limitation,
amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments,
Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to
Holders of the Certificates of the Related Group on such
Distribution Date and
all prior Distribution Dates and (ii) the principal portion of all
Realized
Losses (other than Debt Service Reductions) incurred on the
Mortgage Loans in
such Loan Group from the Cut-off Date through the end of the month
preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the difference between the
Adjusted Pool
Amount and the Adjusted Pool Amount (PO Portion) for such Loan
Group.
Adjusted Pool Amount (PO Portion): With respect to any
Distribution
Date and Loan Group, the sum of the amount, calculated as follows:
the product
of (i) the PO Percentage for such Mortgage Loan and (ii) the
remainder of (A)
the Cut-off Date Principal Balance of such Mortgage Loan minus (B)
the sum of
(x) all amounts in respect of principal received in respect of such
Mortgage
Loan (including, without limitation, amounts received as Monthly
Payments,
Periodic Advances, Principal Prepayments, Liquidation Proceeds and
Substitution
Adjustment Amounts) and distributed to Holders of the Certificates
of the
Related Group on such Distribution Date and all prior Distribution
Dates and (y)
the principal portion of any Realized Loss (other than a Debt
Service Reduction)
incurred on such Mortgage Loan from the Cut-off Date through the
end of the
month preceding such Distribution Date.
Advance: A Periodic
Advance or a Servicing Advance.
Advance Date:
As to any Distribution
Date and each Mortgage
Loan, the Business Day preceding the related Remittance Date.
Aggregate Subordinate Percentage: As to any Distribution Date,
the aggregate Class Certificate Balance of the Subordinate
Certificates
divided by the aggregate Pool Stated Principal Balance (Non-PO
Portion) for
the Loan Groups.
Agreement: This
Pooling and Servicing Agreement together with
all amendments hereof and supplements hereto.
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 (if applicable) 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 (if applicable) 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.
Authenticating Agents:
As defined in Section 9.10.
BAFC: Banc of America
Funding Corporation.
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 states in which the servicing offices of any Servicer
are located,
the state or states in which the master servicing offices of the
Master Servicer
are located or the state or states in which the Corporate Trust
Offices of the
Trustee and the Securities Administrator are located are required
or authorized
by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of
the SunTrust Alternative Loan Trust, Series
2005-1F, Mortgage Pass-Through Certificates, Series 2005-1F that
are issued
pursuant to this Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to Section 3.09(b) in the
name of the
Securities Administrator, on behalf of the Trustee, for the benefit
of the
Certificateholders and designated "Wells Fargo Bank, N.A., as
Securities
Administrator for Wachovia Bank, National Association, as Trustee,
in trust for
registered holders of SunTrust Alternative Loan Trust, Series
2005-1F, Mortgage
Pass-Through Certificates, Series 2005-1F." The Certificate Account
shall be
deemed to consist of six sub-accounts; one for each Loan Group, a
fifth
sub-account referred to herein as the Middle-Tier Certificate
Sub-Account and a
sixth sub-account referred to herein as the Upper-Tier Certificate
Sub-Account.
Funds in the Certificate Account shall be held in trust for the
Holders of the
Certificates for the uses and purposes set forth in this
Agreement.
Certificate Balance: With respect to any Certificate (other than
the
Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO 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 1-A-2,
Class 1-IO,
Class 2-A-2 and Class CB-IO 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 Securities Administrator.
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, the Master Servicer, SunTrust Capital
Markets, Inc. 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 Securities Administrator shall not
be
responsible for knowing that any Certificate is registered in the
name of an
affiliate of the Depositor, SunTrust Capital Markets, Inc. or the
Master
Servicer unless one of its Responsible Officers has actual
knowledge thereof.
Certification: As
defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class
1-A-8, Class
1-IO, Class 1-A-R, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
2-A-4, Class
2-A-5, Class 2-A-6, Class 2-A-7, Class 2-A-8, Class 3-A-1, Class
4-A-1, Class
CB-IO, Class X-PO, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and
Class B-6 Certificates, as the case may be.
Class 1-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date, the amount, if any, by
which the Class
Certificate Balance of the Class 1-A-1 Certificates would be
reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to
such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-1 Reserve Fund: The trust account created and
maintained
by the Securities Administrator pursuant to Section 3.09(i) which
shall be
entitled the "Class 1-A-1 Reserve Fund, Wells Fargo Bank, N.A., as
Securities
Administrator, in trust for registered Holders of the Class 1-A-1
Certificates
of the SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through
Certificates, Series 2005-1F" and which must be an Eligible
Account. Amounts on
deposit in the Class 1-A-1 Reserve Fund shall not be invested. The
Class 1-A-1
Reserve Fund shall not be an asset of any REMIC formed under this
Agreement.
Class 1-A-1 Yield Maintenance Agreement: The yield
maintenance agreement between the Securities Administrator, on
behalf of the
Trust, and the Counterparty, which will be primarily for the
benefit of the
Class 1-A-1 Certificates, attached hereto as Exhibit O.
The Class 1-A-1
Yield Maintenance Agreement shall not be an asset of any REMIC
formed under
this Agreement.
Class 1-A-1 Yield Maintenance Agreement Payment: For any
Distribution Date (other than the Distribution Date in January
2006) prior to
and including the Distribution Date in May 2017, the amount, if
any, required
to be paid by the Counterparty to the Securities Administrator
under the
Class 1-A-1 Yield Maintenance Agreement.
Class 1-A-1 Yield Maintenance Amount: For any Distribution
Date (other than the Distribution Date in January 2006) prior to
and
including the Distribution Date in May 2017, an amount equal to the
product
of (a) the Class Certificate Balance of the Class 1-A-1
Certificates
immediately prior to such Distribution Date, (b) the excess of (i)
the lesser
of 8.85% and LIBOR over (ii) 5.10% and (c) one-twelfth.
Class 1-A-1 Yield Maintenance Amount Shortfall: For any
Distribution
Date, the amount, if any, by which the Class 1-A-1 Yield
Maintenance Amount for
such Distribution Date exceeds the sum of the Class 1-A-1 Yield
Maintenance
Agreement Payment for such Distribution Date and any Excess Funds
in the Class
1-A-1 Reserve Fund.
Class 1-A-2 Notional Amount: As to any Distribution Date and
the
Class 1-A-2 Certificates, the Class Certificate Balance of the
Class 1-A-1
Certificates.
Class 1-A-3 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date, the amount, if any, by
which the Class
Certificate Balance of the Class 1-A-3 Certificates would be
reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to
such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-4 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class
Certificate Balance of the Class 1-A-4 Certificates with respect to
such
Distribution Date prior to any reduction for the Class 1-A-4 Loss
Allocation
Amount and (b) the Class 1-A-3 Loss Amount with respect to such
Distribution
Date.
Class 1-A-8 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class
Certificate Balance of the Class 1-A-8 Certificates with respect to
such
Distribution Date prior to any reduction for the Class 1-A-8 Loss
Allocation
Amount and (b) the Class 1-A-1 Loss Amount with respect to such
Distribution
Date.
Class 1-IO Notional Amount: With respect to each Distribution
Date
and the Class 1-IO Certificates, an amount equal to the product of
(i) the
aggregate of the Stated Principal Balances of the Group 1 Premium
Mortgage Loans
as of the Due Date in the month preceding the month of such
Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the
weighted average
of the Net Mortgage Interest Rates of the Group 1 Premium Mortgage
Loans (based
on the Stated Principal Balances of the Group 1 Premium Mortgage
Loans as of the
Due Date in the month preceding the month of such Distribution
Date) minus
5.750% and (b) the denominator of which is equal to 5.500%.
Class 2-A-1 Reserve Fund: The trust account created and
maintained
by the Securities Administrator pursuant to Section 3.09(i) which
shall be
entitled the "Class 2-A-1 Reserve Fund, Wells Fargo Bank, N.A., as
Securities
Administrator, in trust for registered Holders of the Class 2-A-1
Certificates
of the SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through
Certificates, Series 2005-1F" and which must be an Eligible
Account. Amounts on
deposit in the Class 2-A-1 Reserve Fund shall not be invested. The
Class 2-A-1
Reserve Fund shall not be an asset of any REMIC formed under this
Agreement.
Class 2-A-1 Yield Maintenance Agreement: The yield
maintenance agreement between the Securities Administrator, on
behalf of the
Trust, and the Counterparty, which will be primarily for the
benefit of the
Class 2-A-1 Certificates, attached hereto as Exhibit P.
The Class 2-A-1
Yield Maintenance Agreement shall not be an asset of any REMIC
formed under
this Agreement.
Class 2-A-1 Yield Maintenance Agreement Payment: For any
Distribution Date (other than the Distribution Date in January
2006) prior to
and including the Distribution Date in October 2014, the amount, if
any,
required to be paid by the Counterparty to the Securities
Administrator under
the Class 2-A-1 Yield Maintenance Agreement.
Class 2-A-1 Yield Maintenance Amount: For any Distribution
Date (other than the Distribution Date in January 2006) prior to
and
including the Distribution Date in October 2014, an amount equal to
the
product of (a) the Class Certificate Balance of the Class 2-A-1
Certificates
immediately prior to such Distribution Date, (b) the excess of (i)
the lesser
of 8.85% and LIBOR over (ii) 5.10% and (c) one-twelfth.
Class 2-A-1 Yield Maintenance Amount Shortfall: For any
Distribution
Date, the amount, if any, by which the Class 2-A-1 Yield
Maintenance Amount for
such Distribution Date exceeds the sum of the Class 2-A-1 Yield
Maintenance
Agreement Payment for such Distribution Date and any Excess Funds
in the Class
2-A-1 Reserve Fund.
Class 2-A-2 Notional Amount: As to any Distribution Date and
the
Class 2-A-2 Certificates, the Class Certificate Balance of the
Class 2-A-1
Certificates.
Class 2-A-3 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date, the amount, if any, by
which the Class
Certificate Balance of the Class 2-A-3 Certificates would be
reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to
such Class,
without regard to the operation of Section 5.03(e).
Class 2-A-4 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class
Certificate Balance of the Class 2-A-4 Certificates with respect to
such
Distribution Date prior to any reduction for the Class 2-A-4 Loss
Allocation
Amount and (b) the Class 2-A-3 Loss Amount with respect to such
Distribution
Date.
Class 2-IO Notional Amount: With respect to each Distribution
Date
and the Class 2-IO Component, an amount equal to the product of (i)
the
aggregate of the Stated Principal Balances of the Group 2 Premium
Mortgage Loans
as of the due date in the month preceding the month of such
Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the
weighted average
of the Net Mortgage Interest Rates of the Group 2 Premium Mortgage
Loans (based
on the Stated Principal Balances of the Group 2 Premium Mortgage
Loans as of the
Due Date in the month preceding the month of such Distribution
Date) minus
5.857% and (b) the denominator of which is equal to 5.500%.
Class 3-IO Notional Amount: With respect to each Distribution
Date
and the Class 3-IO Component, an amount equal to the product of (i)
the
aggregate of the Stated Principal Balances of the Group 3 Premium
Mortgage Loans
as of the due date in the month preceding the month of such
Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the
weighted average
of the Net Mortgage Interest Rates of the Group 3 Premium Mortgage
Loans (based
on the Stated Principal Balances of the Group 3 Premium Mortgage
Loans as of the
Due Date in the month preceding the month of such Distribution
Date) minus
6.500% and (b) the denominator of which is equal to 5.500%.
Class 4-IO Notional Amount: With respect to each Distribution
Date
and the Class 4-IO Component, an amount equal to the product of (i)
the
aggregate of the Stated Principal Balances of the Group 4 Premium
Mortgage Loans
as of the due date in the month preceding the month of such
Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the
weighted average
of the Net Mortgage Interest Rates of the Group 4 Premium Mortgage
Loans (based
on the Stated Principal Balances of the Group 4 Premium Mortgage
Loans as of the
Due Date in the month preceding the month of such Distribution
Date) minus
6.500% and (b) the denominator of which is equal to 5.500%.
Class CB-IO Notional Amount: With respect to any Distribution
Date,
an amount equal to the sum of the Class 2-IO Notional Amount, the
Class 3-IO
Notional Amount and the Class 4-IO Notional Amount for such
Distribution Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class of
Certificates
(other than the Class 1-A-2, Class 1-IO, Class 2-A-2, Class CB-IO
and Class X-PO
Certificates) and any date of determination, and subject to Section
5.03(f), the
Initial Class Certificate Balance of such Class minus (A) the sum
of (i) all
distributions of principal made with respect thereto (including in
the case of a
Class of Class B Certificates, any principal otherwise payable to
such Class of
Class B Certificates used to pay any Class PO Deferred Amounts),
(ii) all
reductions in Class Certificate Balance previously allocated
thereto pursuant to
Section 5.03(b) and (iii) in the case of the Class 1-A-4
Certificates, the Class
1-A-8 Certificates and the Class 2-A-4 Certificates, any reduction
allocated
thereto pursuant to Section 5.03(e) plus (B) the sum of (i) all
increases in
Class Certificate Balance previously allocated thereto pursuant to
Section
5.03(b) and (ii) in the case of the Class 1-A-4 Certificates, the
Class 1-A-8
Certificates and the Class 2-A-4 Certificates, any increases
allocated thereto
pursuant to Section 5.03(e). The Class Certificate Balance of the
Class X-PO
Certificates as of any date of determination shall equal the sum of
the
Component Balances of the Class PO Components. The Class 1-A-2,
Class 1-IO,
Class 2-A-2 and Class CB-IO Certificates are Interest Only
Certificates and have
no Class Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the Class CB-IO Certificates),
the amount by
which Accrued Certificate Interest for such Class (as reduced
pursuant to
Section 5.02(c)) exceeds the amount of interest actually
distributed on such
Class on such Distribution Date pursuant to clause (i) of the
definition of
"Interest Distribution Amount." As to any Distribution Date and the
Class CB-IO
Certificates, the sum of the Component Interest Shortfalls for the
Class IO
Components.
Class IO Component: Any of the Class 2-IO Component, the Class
3-IO
Component or the Class 4-IO Component.
Class PO Component: Any of the Class 1-PO Component, the Class
2-PO
Component, the Class 3-PO Component or the Class 4-PO
Component.
Class PO Deferred Amount: As to any Distribution Date and each
Class
PO Component, the sum of the amounts by which the Component Balance
of such
Class PO Component will be reduced on such Distribution Date or has
been reduced
on prior Distribution Dates as a result of Section 5.03(b) less the
sum of (a)
the Class PO Recoveries with respect to the Related Loan Group for
prior
Distribution Dates and (b) the amounts distributed to such Class PO
Component
pursuant to Section 5.02(a)(iii) on prior Distribution Dates.
Class PO Recovery: As to any Distribution Date and Loan Group,
the
lesser of (a) (i) in the case of Group 1, the Class PO Deferred
Amount for the
Class 1-PO Component for such Distribution Date, (ii) in the case
of Group 2,
the Class PO Deferred Amount for the Class 2-PO Component for such
Distribution
Date, (iii) in the case of Group 3, the Class PO Deferred Amount
for the Class
3-PO Component for such Distribution Date and (iv) in the case of
Group 4, the
Class PO Deferred Amount for the Class 4-PO Component for such
Distribution Date
and (b) an amount equal to the sum, as to each Mortgage Loan in
such Loan Group
as to which there has been a Recovery received during the calendar
month
preceding the month of such Distribution Date, of the product of
(x) the PO
Percentage with respect to such Mortgage Loan and (y) the amount of
the Recovery
received during the calendar month preceding the month of such
Distribution Date
with respect to such Mortgage Loan.
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class (other than the Class CB-IO
Certificates), the
amount by which the aggregate Class Interest Shortfalls for such
Class on prior
Distribution Dates exceeds the amount of interest actually
distributed on such
Class on such prior Distribution Dates pursuant to clause (ii) of
the definition
of "Interest Distribution Amount." As to any Distribution Date and
the Class
CB-IO Certificates, the sum of the Component Unpaid Interest
Shortfalls for the
Class IO Components.
Closing Date: December
28, 2005.
Code: The Internal
Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date,
an
amount equal to the lesser of (a) the aggregate Servicing Fee for
the Mortgage
Loans as of the Due Date of the month preceding the month of such
Distribution
Date and (b) the aggregate of the Prepayment Interest Shortfalls on
the Mortgage
Loans resulting from Principal Prepayments on the Mortgage Loans
during the
calendar month preceding the month of such Distribution Date.
Component: Any of the
Class IO Components or Class PO Components.
Component Balance: With respect to any Class PO Component and
any
date of determination, the Initial Component Balance of such
Component minus the
sum of (i) all distributions of principal made with respect thereto
and (ii) all
reductions in the related Component Balance previously allocated
thereto
pursuant to Section 5.03(b). The Class IO Components are interest
only
Components and have no Component Balance.
Component Interest Distribution Amount: For any Distribution
Date
and any Class IO Component, the sum of (i) the Accrued Component
Interest for
such Component and (ii) any Component Unpaid Interest Shortfall for
such
Component. The Class PO Components are principal only Components
and are not
entitled to distributions of interest.
Component Interest Shortfall: For any Distribution Date and any
Class IO Component, the amount by which Accrued Component Interest
for such
Component exceeds the amount of interest actually distributed on
such Component
on such Distribution Date pursuant to clause (i) of the definition
of "Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, any of
the
Class 2-IO Notional Amount, the Class 3-IO Notional Amount or the
Class 4-IO
Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date
and
any Class IO Component, the amount by which the aggregate Component
Interest
Shortfall for such Component on prior Distribution Dates exceeds
the amount of
interest actually distributed on such Component on such prior
Distribution Dates
pursuant to clause (ii) of the definition of "Component Interest
Distribution
Amount."
Cooperative: A private, cooperative housing corporation which
owns
or leases land and all or part of a building or buildings,
including apartments,
spaces used for commercial purposes and common areas therein and
whose board of
directors authorizes, among other things, the sale of Cooperative
Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling
building
owned or leased by a Cooperative, which unit the Mortgagor has an
exclusive
right to occupy pursuant to the terms of a proprietary lease or
occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the
Cooperative
Apartment occupied by the Mortgagor and relating to the related
Cooperative
Stock, which lease or agreement confers an exclusive right to the
holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of
a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing
statements and
(v) a stock power (or other similar instrument), and ancillary
thereto, a
Recognition Agreement, each of which was transferred and assigned
to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the
single
outstanding class of stock, partnership interest or other ownership
instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative
Loan, the stock certificate or other instrument evidencing the
related
Cooperative Stock.
Corporate Trust Office: With respect to the Trustee, the
principal
office of the Trustee, which office at the date of the execution of
this
instrument is located at 401 South Tryon Street, Charlotte, North
Carolina,
28288-1179 Attention: Structured Finance Trust Services, SALT,
Series 2005-1F,
or at such other address as the Trustee may designate from time to
time by
notice to the Certificateholders, the Depositor, the Securities
Administrator
and the Master Servicer. With respect to the Securities
Administrator, the
principal corporate trust office of the Securities Administrator 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 SALT 2005-1F, and for certificate
transfer
purposes is located at Sixth Street and Marquette Avenue,
Minneapolis, Minnesota
55479, Attention: Corporate Trust Services - BAFC SALT 2005-1F, or
at such other
address as the Securities Administrator may designate from time to
time by
notice to the Certificateholders, the Depositor, the Trustee and
the Master
Servicer.
Corresponding Upper-Tier Class, Classes or Component: As to the
following Uncertificated Middle-Tier Interests, the Corresponding
Upper-Tier
Class, Classes or Component, as follows:
Uncertificated
Corresponding Upper-Tier
Middle-Tier Interest
Class, Classes or Component
----------------------------
----------------------------------------------
Class 1-A-M1 Interest
Class 1-A-1 and Class 1-A-2 Certificates
Class 1-A-M3 Interest
Class 1-A-3, Class 1-A-4, Class 1-A-5, Class
1-A-6, Class 1-A-7 and Class 1-A-8 Certificates
Class 1-MIO Interest
Class 1-IO Certificates
Class 1-MPO Interest
Class 1-PO Component
Class 1-A-MUR Interest
Class 1-A-R Certificate
Class 2-A-M1 Interest
Class 2-A-1 and Class 2-A-2 Certificates
Class 2-A-M3 Interest
Class 2-A-3, Class 2-A-4, Class 2-A-5, Class
2-A-6 and Class 2-A-7 Certificates
Class 2-A-M8 Interest
Class 2-A-8 Certificates
Class 2-MIO Interest
Class 2-IO Component
Class 2-MPO Interest
Class 2-PO Component
Class 3-A-M1 Interest
Class 3-A-1 Certificates
Class 3-MIO Interest
Class 3-IO Component
Class 3-MPO Interest
Class 3-PO Component
Class 4-A-M1 Interest
Class 4-A-1 Certificates
Class 4-MIO Interest
Class 4-IO Component
Class 4-MPO Interest
Class 4-PO Component
Class B-M1 Interest
Class B-1 Certificates
Class B-M2 Interest
Class B-2 Certificates
Class B-M3 Interest
Class B-3 Certificates
Class B-M4 Interest
Class B-4 Certificates
Class B-M5 Interest
Class B-5 Certificates
Class B-M6 Interest
Class B-6 Certificates
Counterparty: Bank of America, National Association.
Custodial Agreement: The Custodial Agreement, dated December
28,
2005, among the Custodian, the Seller, the Servicer and the
Trustee, which
agreement is attached hereto as Exhibit Q, as the same may be
amended or
modified from time to time in accordance with the terms
thereof.
Custodian:
SunTrust Bank, or its
successor in interest under the
Custodial Agreement.
Customary Servicing Procedures: With respect to (i) the
Servicer,
procedures (including collection procedures) that the 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 and (ii) the Master Servicer, those master servicing
procedures that
constitute customary and usual standards of practice of prudent
mortgage loan
master servicers.
Cut-off Date: December
1, 2005.
Cut-off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-off Date Principal Balances of the Mortgage
Loans in such
Loan Group which is $198,846,400.25 for Loan Group 1,
$232,077,824.78 for Loan
Group 2, $130,423,854.87 for Loan Group 3 and $126,830,652.67 for
Loan Group 4.
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 of such
Mortgage Loan 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, the Master Servicer or the Trustee, as applicable, 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 Sections 2.02 or
2.04.
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, the
Master Servicer or the Trustee, as applicable, in accordance with
the terms of
such Mortgage Loan as in effect on the Cut-off Date.
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:
With respect to any Distribution Date, as
defined in the Servicing Agreement.
Discount Mortgage Loan: Any Group 1 Discount Mortgage
Loan,
Group 2 Discount Mortgage Loan, Group 3 Discount Mortgage Loan or
Group 4
Discount Mortgage Loan.
Distribution Date: The
25th day of each month beginning in
January 2006 (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 Securities Administrator 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 and
the
Securities Administrator), 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 or the Securities Administrator.
ERISA: The Employee
Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class B-4, Class B-5
or
Class B-6 Certificates.
Escrow Account: As
defined in Section 3.08.
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.
Events of Default: As
defined in Section 8.01.
Excess Funds: With respect to (1) the Class 1-A-1 Reserve Fund
and
for any Distribution Date, the amount by which (a) the Class 1-A-1
Yield
Maintenance Agreement Payments for prior Distribution Dates exceed
(b) the
amount actually paid from the Class 1-A-1 Reserve Fund with respect
to (i) the
Class 1-A-1 Yield Maintenance Amounts for such prior Distribution
Dates and (ii)
the Class 1-A-1 Yield Maintenance Amount Shortfalls for such prior
Distribution
Dates and (2) the Class 2-A-1 Reserve Fund and for any Distribution
Date, the
amount by which (a) the Class 2-A-1 Yield Maintenance Agreement
Payments for
prior Distribution Dates exceed (b) the amount actually paid from
the Class
2-A-1 Reserve Fund with respect to (i) the Class 2-A-1 Yield
Maintenance Amounts
for such prior Distribution Dates and (ii) the Class 2-A-1 Yield
Maintenance
Amount Shortfalls for such prior Distribution Dates.
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 3.11(a)(iv), 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.
Exchange Act: The
Securities Exchange Act of 1934, as amended.
FDIC: The Federal
Deposit Insurance 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 Securities Administrator.
FIRREA: The Financial
Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
Form 10-K: As defined
in Section 3.22.
Fractional Interest:
As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the
REMICs
consisting of (i) the right of the Class 1-A-1 Certificates to
receive amounts
from the Class 1-A-1 Reserve Fund, (ii) the right of the Class
2-A-1
Certificates to receive amounts from the Class 2-A-1 Reserve Fund,
(iii) the
Class 1-A-1 Yield Maintenance Agreement and the Class 1-A-1 Reserve
Fund and
(iv) the Class 2-A-1 Yield Maintenance Agreement and the Class
2-A-1 Reserve
Fund.
Group: Any of Group 1,
Group 2, Group 3 or Group 4.
Group 1: The Group 1
Senior Certificates and the Class 1-PO
Component.
Group 1 Discount Mortgage Loan: Any Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
5.750% per
annum.
Group 1 Mortgage Loan:
Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: Any Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is greater than
or equal to
5.750% per annum.
Group 1 Priority Amount: As to any Distribution Date, the lesser
of
(i) the aggregate Class Certificate Balance of the Class 1-A-3 and
Class 1-A-4
Certificates and (ii) the product of (a) the Non-PO Principal
Amount for Loan
Group 1, (b) the Shift Percentage and (c) the Group 1 Priority
Percentage.
Group 1 Priority Percentage: As to any Distribution Date, the
percentage equivalent (carried to six places rounded up) of a
fraction the
numerator of which is the aggregate Class Certificate Balance of
the Class 1-A-3
and Class 1-A-4 Certificates immediately prior to such date and the
denominator
of which is the Pool Stated Principal Balance (Non-PO Portion) for
Loan Group 1
immediately prior to such date.
Group 1 Senior Certificates: The Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class
1-A-8, Class
1-IO and Class 1-A-R Certificates.
Group 2: The Group 2
Senior Certificates, the Class 2-IO
Component and the Class 2-PO Component.
Group 2 Discount Mortgage Loan: Any Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
5.857% per
annum.
Group 2 Mortgage Loan:
Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: Any Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is greater than
or equal to
5.857% per annum.
Group 2 Priority Amount: As to any Distribution Date, the lesser
of
(i) the aggregate Class Certificate Balance of the Class 2-A-3 and
Class 2-A-4
Certificates and (ii) the product of (a) the Non-PO Principal
Amount for Loan
Group 2, (b) the Shift Percentage and (c) the Group 2 Priority
Percentage.
Group 2 Priority Percentage: As to any Distribution Date, the
percentage equivalent (carried to six places rounded up) of a
fraction the
numerator of which is the aggregate Class Certificate Balance of
the Class 2-A-3
and Class 2-A-4 Certificates immediately prior to such date and the
denominator
of which is the Pool Stated Principal Balance (Non-PO Portion) for
Loan Group 2
immediately prior to such date.
Group 2 Senior Certificates: The Class 2-A-1, Class 2-A-2,
Class
2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-6, Class 2-A-7 and Class
2-A-8
Certificates.
Group 3: The Group 3
Senior Certificates, the Class 3-IO
Component and the Class 3-PO Component.
Group 3 Discount Mortgage Loan: Any Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
6.500% per
annum.
Group 3 Mortgage Loan:
Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Premium Mortgage Loan: Any Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is greater than
or equal to
6.500% per annum.
Group 3 Senior Certificates: The Class 3-A-1 Certificates.
Group 4: The Group 4
Senior Certificates, the Class 4-IO
Component and the Class 4-PO Component.
Group 4 Discount Mortgage Loan: Any Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
6.500% per
annum.
Group 4 Mortgage Loan:
Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Premium Mortgage Loan: Any Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is greater than
or equal to
6.500% per annum.
Group 4 Senior Certificates: The Class 4-A-1 Certificates.
Holder: A
Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact independent of the Depositor, the
Trustee, the
Securities Administrator, the Master Servicer and the Servicer,
(ii) does not
have any direct financial interest or any material indirect
financial interest
in the Depositor, the Trustee, the Securities Administrator, the
Master Servicer
or the Servicer or in an affiliate of any of them, and (iii) is not
connected
with the Depositor, the Trustee, the Securities Administrator, the
Master
Servicer or the Servicer as an officer, employee, promoter,
underwriter,
trustee, partner, director or person performing similar
functions.
Initial Class Certificate Balance: As to each Class of
Certificates
(other than the Class 1-A-2, Class 1-IO, Class 2-A-2 and Class
CB-IO
Certificates), the Class Certificate Balance set forth in the
Preliminary
Statement. The Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO
Certificates
are Interest Only Certificates and have no Initial Class
Certificate Balance.
Initial Component Balance: As to each Class PO Component, the
Component Balance set forth in the Preliminary Statement.
Initial Notional Amount: As to each Class of Interest
Only
Certificates, the Notional Amount set forth in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any Primary Mortgage Insurance Policy or any other
insurance
policy (including any policy covering any Mortgage Loan or
Mortgaged Property,
including without limitation, any hazard insurance policy required
pursuant to
Section 3.12, any title insurance policy described in Section 2.01
and any
Federal Housing Administration insurance policies and Department of
Veterans
Affairs insurance policies), 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 any Distribution Date
and
each Class of interest-bearing Certificates (other than the Class
1-A-1,
Class 1-A-2, Class 2-A-1, Class 2-A-2 and Class CB-IO Certificates)
and each
Class IO Component, the period from and including the first day of
the
calendar month preceding the calendar month of such Distribution
Date to but
not including the first day of the calendar month of such
Distribution Date.
As to any Distribution Date and the Class 1-A-1, Class 1-A-2, Class
2-A-1 and
Class 2-A-2 Certificates, the period from and including the 25th
day of the
calendar month preceding the calendar month in which such
Distribution Date
occurs and ending on the 24th day of the calendar month in which
such
Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and
each
interest-bearing Class (other than the Class CB-IO Certificates)
and each Class
IO Component, the sum of (i) the Accrued Certificate Interest or
Accrued
Component Interest, subject to reduction pursuant to Section
5.02(c) and (ii)
any Class Unpaid Interest Shortfall for such Class or Component
Unpaid Interest
Shortfall for such Component.
Interest Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no distributions of principal. The
Class 1-A-2,
Class 1-IO, Class 2-A-2 and Class CB-IO Certificates are the only
Classes of
Interest Only Certificates.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar
deposits, as
determined by the Securities Administrator in accordance with
Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open
for
dealing in foreign currency and exchange in London, England and the
City of New
York.
LIBOR Certificates: Any of the Class 1-A-1, Class 1-A-2, Class
2-A-1
or Class 2-A-2 Certificates.
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 the Servicing 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 Group:
Any of Loan Group 1,
Loan Group 2, Loan Group 3 or
Loan Group 4.
Loan Group 1: The
Group 1 Mortgage Loans.
Loan Group 2: The
Group 2 Mortgage Loans.
Loan Group 3: The
Group 3 Mortgage Loans.
Loan
Group 4: The Group 4
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
origination and the denominator of which is the Appraised Value of
the related
Mortgaged Property.
Losses: As defined in
Section 5.10(a).
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as
shall from time
to time be held in the Certificate Account (other than amounts held
in respect
of the Middle-Tier Certificate Sub-Account or the Upper-Tier
Certificate
Sub-Account), the insurance policies, if any, relating to a
Mortgage Loan and
property which secured a Mortgage Loan and which has been acquired
by
foreclosure or deed in lieu of foreclosure.
Master Servicer: Wells
Fargo Bank, N.A., and its
successors-in-interest and, if a successor master servicer is
appointed
hereunder, such successor, as master servicer.
Master Servicer Custodial Account: The Eligible Account created
and
maintained by the Master Servicer pursuant to Section 3.09 in the
name of the
Master Servicer for the benefit of the Certificateholders and
designated "Wells
Fargo Bank, N.A., as Master Servicer, in trust for the registered
holders of
SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through Certificates, Series 2005-1F."
Master 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 Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in
Section 3.22(c).
Master Servicer's Certificate: The monthly report required by
the Master Servicer pursuant to Section 4.01.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master
servicing of the
Mortgage Loans whose name appears on a list of servicing officers
furnished to
the Securities Administrator by the Master Servicer, as such list
may from time
to time be amended.
Master Servicing Transfer Costs: All reasonable costs and
expenses
(including attorney's fees) incurred by the Trustee or a successor
master
servicer in connection with the transfer of master servicing or
servicing from a
predecessor master servicer, including, without limitation, any
costs or
expenses associated with the complete transfer of all master
servicing data or
servicing data and the completion, correction or manipulation of
such master
servicing data or servicing data as may be required by the Trustee
or successor
master servicer to correct any errors or insufficiencies in the
master servicing
data or servicing data or otherwise to enable the Trustee or a
successor master
servicer to master service or service, as the case may be, the
applicable
Mortgage Loans properly and effectively.
MERS: The Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any MOM Loan or any other Mortgage Loan as
to
which MERS is (or is intended to be) the mortgagee of record and as
to which a
MIN has been assigned.
MIN: A MERS Mortgage Identification Number assigned to a
Mortgage
Loan registered under MERS.
MOM Loan: A Mortgage Loan where the related Mortgage names MERS
as
the original mortgagee thereof, as to which a MIN has been
assigned, and which
Mortgage has not been assigned to any other person.
Middle-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Securities Administrator
pursuant to
Section 3.09(h).
Middle-Tier Distribution Amount: As defined in Section 5.02(a).
Middle-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 held in the
Middle-Tier Certificate
Sub-Account.
Monthly Form 8-K: As
defined in Section 3.22.
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 in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 28, 2005, among STAF, as seller, the
Depositor, as
purchaser, and SunTrust Bank.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the Master 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, Exhibit D-2, Exhibit D-3 and Exhibit D-4, 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; (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) [RESERVED]; (xvi) the
Appraised Value;
and (xvii) the closing date of the Mortgage Loan. With respect to
the Mortgage
Loans 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 Cooperative Stock 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 calendar month preceding the month of such Distribution Date
reduced by the
Servicing Fee Rate for such Mortgage Loan.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net
Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and the
denominator
of which is 5.750% for each Group 1 Discount Mortgage Loan, 5.857%
for each
Group 2 Discount Mortgage Loan, 6.500% for each Group 3 Discount
Mortgage Loan
and 6.500% for each Group 4 Discount Mortgage Loan. As to any
Mortgage Loan that
is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date and Loan
Group,
the sum of (i) the sum of the applicable Non-PO Percentage of (a)
the principal
portion of each Monthly Payment due on each Mortgage Loan in such
Loan Group on
the related Due Date, (b) the Stated Principal Balance, as of the
date of
repurchase, of (i) each Mortgage Loan in such Loan Group that was
repurchased by
the Servicer pursuant to the Servicing Agreement as of such
Distribution Date,
(ii) each Mortgage Loan in such Loan Group repurchased by the
Seller (or
SunTrust Bank, to the extent the Seller fails to perform its
obligations under
the Mortgage Loan Purchase Agreement) pursuant to the Mortgage Loan
Purchase
Agreement or a Purchase Obligation as of such Distribution Date,
(iii) each
Mortgage Loan in such Loan Group repurchased by the Depositor
pursuant to
Section 2.04 or (iv) each Mortgage Loan in such Loan Group
purchased by the
Servicer pursuant to Section 10.01, (c) any Substitution Adjustment
Amount in
connection with a Defective Mortgage Loan in such Loan Group
received during the
calendar month preceding the month of such Distribution Date, (d)
any
Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received
by the
Servicer during the calendar month preceding the month of such
Distribution
Date, (e) with respect to each Mortgage Loan in such Loan Group
that became a
Liquidated Mortgage Loan during the calendar month preceding the
month of such
Distribution Date, the amount of Liquidation Proceeds (excluding
Excess
Proceeds) allocable to principal received by the Servicer with
respect to such
Mortgage Loan during such period and (f) with respect to each
Mortgage Loan, all
Principal Prepayments on the Mortgage Loans in such Loan Group
received by the
Servicer during the calendar month preceding the month of such
Distribution
Date; and (ii) the Non-PO Recovery with respect to such Loan Group
for such
Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group,
the
amount of all Recoveries received with respect to such Loan Group
during the
calendar month preceding the month of such Distribution Date less
the Class PO
Recovery with respect to such Loan Group for such Distribution
Date.
Non-Supported Interest Shortfalls: As to any Distribution Date,
the
amount, if any, by which the aggregate of Prepayment Interest
Shortfalls exceeds
the aggregate Compensating Interest for such Distribution Date.
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
will not or, in
the case of a proposed Advance, would not be ultimately recoverable
from the
related Mortgagor, related Liquidation Proceeds, Insurance Proceeds
or other
recoveries in respect of the related Mortgage Loan.
Notional Amount: With respect to (a) the Class 1-A-2
Certificates
and any date of determination, the Class 1-A-2 Notional Amount, (b)
the Class
1-IO Certificates and any date of determination, the Class 1-IO
Notional Amount,
(c) the Class 2-A-2 Certificates and any date of determination, the
Class 2-A-2
Notional Amount and (d) the Class CB-IO Certificates and any date
of
determination, the Class CB-IO Notional Amount.
Offered Certificates:
The Senior, 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
or the Master
Servicer, as the case may be, and delivered to the Trustee or the
Securities
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the Trustee, or acceptable
to the
Securities Administrator if such opinion is delivered to the
Securities
Administrator, who may be counsel for the Depositor or the Master
Servicer,
except that any opinion of counsel relating to the qualification of
the Trust
Estate as three separate REMICs or compliance with the REMIC
Provisions must be
an opinion of Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the corresponding percentage
described
below, as of the Closing Date:
Class B-1
3.61%
Class B-2
2.41%
Class B-3
1.71%
Class B-4
1.00%
Class B-5
0.40%
Class B-6
0.00%
Original Subordinate Certificate Balance: $49,893,758.00.
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, 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 Sections 2.02 or
2.04.
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
and each interest-bearing Component, the per annum rate set forth
or described
in the Preliminary Statement.
Payahead Amount: As to any Distribution Date and Mortgage Loan,
early prepayments of scheduled installments of principal and
interest made by a
Mortgagor during the calendar month preceding the month of such
Distribution
Date that are intended by such Mortgagor to be applied on
subsequent Due Dates.
Paying Agent: As
defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance of such Certificate (or
the initial
notional amount for the Class 1-A-2, Class 1-IO, Class 2-A-2 and
Class CB-IO
Certificates) by the Initial Class Certificate Balance or Initial
Notional
Amount, as applicable, of the Class of which such Certificate is a
part.
Periodic Advance: The meaning given to the term "Monthly Advance"
in
the Servicing Agreement.
Permitted Investments:
One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United
States, Freddie Mac, Fannie Mae 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 Freddie
Mac
or Fannie
Mae 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
Securities
Administrator or its affiliates, or funds for which an
affiliate
of the Securities Administrator acts as advisor, as well as
funds for
which the Securities Administrator and its affiliates may
receive
compensation) rated "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, as evidenced by an Opinion of Counsel obtained by
the
Master
Servicer or Securities Administrator, as the case may be, will
not
affect the
qualification of the Trust Estate as three 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 Master
Servicer 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 1-A-R, Class B-4, Class B-5 and
Class B-6 Certificates.
Plan: As defined in
Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the aggregate of (A) the
interest
portion of any Monthly Payment on a Mortgage Loan in such Loan
Group and the
principal portion of any Monthly Payment on a Mortgage Loan in such
Loan Group
due on the Due Date in the month in which such Distribution Date
occurs and
which is received prior to the related Determination Date and (B)
all Periodic
Advances made by the Servicer (or the Master Servicer or the
Trustee, as
applicable) in respect of such Loan Group and payments of
Compensating Interest
allocable to such Loan Group made by the Servicer in respect of
such Loan Group
and such Distribution Date deposited to the Master Servicer
Custodial Account
pursuant to Section 3.09(d)(vi); (ii) all Liquidation Proceeds
(other than
Excess Proceeds) received on the Mortgage Loans in such Loan Group
during the
calendar month preceding the month of such Distribution Date and
deposited to
the Master Servicer Custodial Account pursuant to Section
3.09(d)(iii); (iii)
all Principal Prepayments received on the Mortgage Loans in such
Loan Group
during the calendar month preceding the month of such Distribution
Date and
deposited to the Master Servicer Custodial Account pursuant to
Section
3.09(d)(i) during such period; (iv) in connection with any Mortgage
Loans that
are Defective Mortgage Loans in such Loan Group, the aggregate of
the Purchase
Prices and Substitution Adjustment Amounts remitted on the related
Remittance
Date pursuant to Section 3.09(d)(vii); (v) any other amounts in the
Master
Servicer Custodial Account deposited therein pursuant to Section
3.09(d)(iv),
(v), (viii), (ix) and (x) in respect of such Distribution Date and
such Loan
Group; (vi) any Reimbursement Amount required to be included
pursuant to Section
5.02(a); and (vii) any Non-PO Recovery with respect to such
Distribution Date
and Loan Group over (b) any amounts permitted to be withdrawn from
the Master
Servicer Custodial Account pursuant to clauses (i) through (viii),
inclusive, of
Section 3.11(a) in respect of such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans
in such Loan
Group that were Outstanding Mortgage Loans immediately following
the Due Date in
the month preceding the month in which such Distribution Date
occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group, the sum of the product, for each
Mortgage Loan
of such Loan Group, of (a) the Non-PO Percentage of such Mortgage
Loan
multiplied by (b) the Stated Principal Balance of such Mortgage
Loan that was an
Outstanding Mortgage Loan immediately following the Due Date in the
month
preceding the month in which such Distribution Date occurs.
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan
that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group,
(i)
the sum of the applicable PO Percentage of (a) the principal
portion of each
Monthly Payment due on each Mortgage Loan in such Loan Group on the
related Due
Date; (b) the Stated Principal Balance, as of the date of
repurchase, of (i)
each Mortgage Loan in such Loan Group that was repurchased by the
Servicer
pursuant to the Servicing Agreement as of such Distribution Date,
(ii) each
Mortgage Loan in such Loan Group repurchased by the Seller (or
SunTrust Bank, to
the extent the Seller fails to perform its obligations under the
Mortgage Loan
Purchase Agreement) pursuant to the Mortgage Loan Purchase
Agreement or a
Purchase Obligation as of such Distribution Date, (iii) each
Mortgage Loan in
such Loan Group repurchased by the Depositor pursuant to Section
2.04, or (iv)
each Mortgage Loan in each Loan Group purchased by the Servicer
pursuant to
Section 10.01; (c) any Substitution Adjustment Amount in connection
with any
Defective Mortgage Loan in such Loan Group received with respect to
such
Distribution Date; (d) any Liquidation Proceeds allocable to
recoveries of
principal of Mortgage Loans in such Loan Group that are not yet
Liquidated
Mortgage Loans received by the Servicer during the calendar month
preceding the
month of such Distribution Date; (e) with respect to each Mortgage
Loan in such
Loan Group that became a Liquidated Mortgage Loan during the
calendar month
preceding the month of such Distribution Date, the amount of
Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal
received by the
Servicer with respect to such Mortgage Loan during such period; and
(f) all
Principal Prepayments on the Mortgage Loans in such Loan Group
received by the
Servicer during the calendar month preceding the month of such
Distribution
Date; and (ii) the Class PO Recovery with respect to such Loan
Group for such
Distribution Date.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan, Group
2
Premium Mortgage Loan, Group 3 Premium Mortgage Loan or Group 4
Premium Mortgage
Loan.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal Prepayment received during the
calendar
month preceding the month of 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.
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
Fannie Mae or
Freddie Mac.
Principal Only Certificates: Any Class of Certificates entitled
to
distributions of principal, but to no distributions of interest.
The Class X-PO
Certificates are the only Principal Only Certificates.
Principal Prepayment: With respect to each Mortgage Loan, any
payment or other recovery of principal on a Mortgage Loan (other
than
Liquidation Proceeds or Payaheads) 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.
Private Certificates:
The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the
portion of the
Subordinate Principal Distribution Amounts allocable to such Class,
equal to the
product of the Subordinate Principal Distribution Amounts for such
Distribution
Date and a fraction, the numerator of which is the related Class
Certificate
Balance thereof and the denominator of which is the aggregate Class
Certificate
Balance of the Subordinate Certificates that are not Restricted
Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Purchase Obligation:
An obligation of the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its
obligations under
the Mortgage Loan Purchase Agreement) or the Depositor to purchase
Mortgage
Loans under the circumstances and in the manner provided in Section
2.02 or
2.04.
Purchase Price: With respect to each Mortgage Loan that was a
Defective Mortgage Loan repurchased on any date pursuant to
Sections 2.02 or
2.04, an amount equal to 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 the Person repurchasing such Mortgage Loan
is servicing
such Mortgage Loan under the Servicing Agreement, the Servicing Fee
for such
Mortgage Loan.
Rate Determination Date: As to any Class of LIBOR Certificates,
the
second LIBOR Business Day prior to the beginning of the applicable
Interest
Accrual Period for such Class and such Distribution Date.
Rating Agency: Either 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 Master Servicer and the Securities
Administrator.
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.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of
such
Cooperative Loan.
Record Date: The last day of the month (or, if such day is not
a
Business Day, the preceding Business Day) preceding the month of
the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such
Mortgage Loan being determined to be a Liquidated Mortgage
Loan.
Regular Certificates:
As defined in the Preliminary Statement
hereto.
Reimbursement Amount:
As defined in Section 2.02.
Related Group: For
Loan Group 1, Group 1, for Loan Group 2,
Group 2, for Loan Group 3, Group 3 and for Loan Group 4, Group
4.
Related Loan Group:
For Group 1, Loan Group 1, for Group 2, Loan
Group 2, for Group 3, Loan Group 3 and for Group 4, Loan Group
4.
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.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is defined in Section
2.07.
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: The
18th day of each month beginning in
January 2006 (or, if such day is not a Business Day, the preceding
Business
Day).
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of the
Servicer
received in respect of any REO Property (including, without
limitation, proceeds
from the rental of the related Mortgaged Property) which are
received prior to
the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer
servicing the related Mortgage Loan on behalf of the Trust through
foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, substantially in the form attached
hereto as 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 Fund: Either
of the Class 1-A-1 Reserve Fund or the
Class 2-A-1 Reserve Fund.
Residual Certificate:
The Class 1-A-R Certificate.
Responsible Officer: When used with respect to the Trustee or
the
Securities Administrator, any officer of the Corporate Trust
Department of the
Trustee or the Securities Administrator, as applicable, 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 or Securities Administrator, as applicable, customarily
performing
functions similar to those performed by any of the above designated
officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As
defined in Section 5.02(d).
S&P: Standard
& Poor's, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
Securities Administrator: Wells Fargo Bank, N.A., and
its
successors-in-interest and, if a successor securities administrator
is
appointed hereunder, such successor, as securities
administrator.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the
originator of
the Cooperative Loan in the related Cooperative Stock.
Seller: SunTrust Asset Funding, LLC, a Delaware limited
liability
company, or its successor in interest, as seller of the Mortgage
Loans under the
Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-IO,
Class 1-A-R, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4,
Class 2-A-5,
Class 2-A-6, Class 2-A-7, Class 2-A-8, Class 3-A-1, Class 4-A-1,
Class CB-IO and
Class X-PO Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates
is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and
Loan
Group, the percentage, carried to six places rounded up, obtained
by dividing
(i) the sum of the aggregate Class Certificate Balance of the
Senior
Certificates of the Related Group immediately prior to such
Distribution Date,
by (ii) the Pool Stated Principal Balance (Non-PO Portion) of such
Loan Group
for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group during the five (5) years beginning on the first Distribution
Date, 100%.
The Senior Prepayment Percentage for any Loan Group and for any
Distribution
Date occurring on or after the fifth anniversary of the first
Distribution Date
will, except as provided herein, be as follows: for any
Distribution Date in the
first (1st) year thereafter, the Senior Percentage for such Loan
Group plus 70%
of the Subordinate Percentage for such Loan Group for such
Distribution Date;
for any Distribution Date in the second (2nd) year thereafter, the
Senior
Percentage for such Loan Group plus 60% of the Subordinate
Percentage for such
Loan Group for such Distribution Date; for any Distribution Date in
the third
(3rd) year thereafter, the Senior Percentage for such Loan Group
plus 40% of the
Subordinate Percentage for such Loan Group for such Distribution
Date; for any
Distribution Date in the fourth (4th) year thereafter, the Senior
Percentage for
such Loan Group plus 20% of the Subordinate Percentage for such
Loan Group for
such Distribution Date; and for any Distribution Date in the fifth
(5th) or
later years thereafter, the Senior Percentage for such Loan Group
for such
Distribution Date (unless on any of the foregoing Distribution
Dates, the Total
Senior Percentage exceeds the initial Total Senior Percentage, in
which case the
Senior Prepayment Percentage for each Loan Group for such
Distribution Date will
once again equal 100%). Notwithstanding the foregoing, no decrease
in the Senior
Prepayment Percentage for either Loan Group will occur unless both
of the Senior
Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior Percentage for such Loan
Group of the
applicable Non-PO Percentage of the amounts described in clauses
(i)(a) through
(d) of the definition of "Non-PO Principal Amount" for such
Distribution Date
and Loan Group and (ii) the Senior Prepayment Percentage for such
Loan Group of
(1) the applicable Non-PO Percentage of the amounts described in
clauses (i)(e)
and (f) and (2) the amount described in clause (ii) of the
definition of "Non-PO
Principal Amount" for such Distribution Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and as
to
which any decrease in the Senior Prepayment Percentage for any Loan
Group
applies, (i) the outstanding principal balance of all Mortgage
Loans (including,
for this purpose, any Mortgage Loans in foreclosure, any REO
Property and any
Mortgage Loan for which the Mortgagor has filed for bankruptcy
after the Closing
Date) delinquent 60 days or more (averaged over the preceding six
month period),
as a percentage of the aggregate Class Certificate Balance of the
Subordinate
Certificates, is not equal to or greater than 50% or (ii)
cumulative Realized
Losses with respect to the Mortgage Loans as of the applicable
Distribution Date
do not exceed the percentages of the Original Subordinate
Certificate Balance
set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
----------------------------------
--------------------
January
2011 through December 2011
30%
January
2012 through December 2012
35%
January
2013 through December 2013
40%
January
2014 through December 2014
45%
January
2015 and thereafter
50%
Servicer: SunTrust
Mortgage, in its capacity as the servicer of
the Mortgage Loans, or any successor servicer appointed as herein
provided.
Servicer Custodial Account: The separate account created
and
maintained by the Servicer pursuant to the Servicing Agreement.
Servicing Advance: The
meaning given to the term "Servicing
Advances" in the Servicing Agreement.
Servicing Agreement: The Seller's Purchase, Warranties and
Servicing
Agreement, dated as of November 1, 2005, between STAF, as purchaser
and SunTrust
Mortgage, as seller and servicer.
Servicing Fee: With
respect to each Mortgage Loan, 0.250% per
annum.
Servicing Fee Rate:
With respect to each Mortgage Loan, as
defined in the Servicing Agreement.
Servicing File: With
respect to each Mortgage Loan, as defined
in the Servicing Agreement.
Servicing Officer: As
defined in the Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of
the
Master Servicer or the Trustee, as applicable, related to any
termination of the
Servicer, appointment of a successor Servicer or the transfer and
assumption of
servicing by the Master Servicer or the Trustee, as applicable,
with respect to
the Servicing Agreement (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 the 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 Master Servicer or
the Trustee, as
applicable, to correct any errors or insufficiencies in the
servicing data or
otherwise to enable the Master Servicer or the Trustee, as
applicable, to
service the Mortgage Loans properly and effectively).
Shift Percentage: As
to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In
Shift Percentage
----------------------------------------------
---------------------
January
2006 through December 2010
0%
January
2011 through December 2011
30%
January
2012 through December 2012
40%
January
2013 through December 2013
60%
January
2014 through December 2014
80%
January
2015 and thereafter
100%
Similar Law: As
defined in Section 6.02(e).
STAF: SunTrust Asset
Funding, LLC.
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.
Subordinate Balance Ratio: As of any date of determination, the
ratio between the principal balances of the Class 1-LS Interest,
Class 2-LS
Interest, Class 3-LS Interest and Class 4-LS Interest equal to the
ratio among
the Group Subordinate Amounts of Loan Group 1, Loan Group 2, Loan
Group 3 and
Loan Group 4.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and
Loan
Group, 100% minus the Senior Percentage for such Loan Group for
such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and Loan Group, 100% minus the Senior Prepayment Percentage for
such Loan
Group and such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i)
the
Subordinate Percentage for such Loan Group of the applicable Non-PO
Percentage
of the amounts described in clauses (i)(a) through (d) of the
definition of
"Non-PO Principal Amount" for such Distribution Date and Loan Group
and (ii) the
Subordinate Prepayment Percentage for such Loan Group of the
applicable Non-PO
Percentage of the amounts described in clauses (i)(e)and (f) and
(2) the amount
described in clause (ii) of the definition of "Non-PO Principal
Amount" for such
Distribution Date and Loan Group.
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 credit score not less than that of the
Defective
Mortgage Loan, (vi) have a remaining term to maturity not greater
than (and not
more than one (1) year less than) that of the Defective Mortgage
Loan; (vii)
have the same lien priority as the Defective Mortgage Loan; and
(viii) comply
with each Mortgage Loan representation and warranty set forth in
the Mortgage
Loan Purchase Agreement, the Servicing Agreement and this
Agreement. 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.
SunTrust Bank:
SunTrust Bank, a Georgia banking corporation.
SunTrust Mortgage:
SunTrust Mortgage, Inc., or its successor in
interest.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner provided under Treasury
Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Total Senior Percentage: With respect to any Distribution Date,
the
percentage, carried six places rounded up, obtained by dividing (x)
the sum of
the Class Certificate Balance of the Group 1 Senior Certificates,
the Group 2
Senior Certificates, the Group 3 Senior Certificates and the Group
4 Senior
Certificates by (y) the aggregate Pool Stated Principal Balance
(Non-PO Portion)
for all Loan Groups with respect to such Distribution Date.
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
the
"SunTrust Alternative Loan Trust, Series 2005-1F."
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 three 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) amounts in the Reserve Funds, (v) the
Depositor's rights
as assignee of the Seller with respect to the Seller's rights under
the
Servicing Agreement and the Mortgage Loan Purchase Agreement
(including any
security interest created thereby), (vi) the Securities
Administrator's rights
under the Yield Maintenance Agreements and (vii) the Servicer
Custodial Account,
the Master Servicer Custodial Account, the Certificate Account and
the Reserve
Funds 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: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed
hereunder, such
successor, as trustee.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Middle-Tier REMIC
and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 1-LPO Interest,
Class 1-LIO
Interest, Class 2-L Interest, Class 2-LS Interest, Class 2-LPO
Interest, Class
2-LIO Interest, Class 3-L Interest, Class 3-LS Interest, Class
3-LPO Interest,
Class 3-LIO Interest, Class 4-L Interest, Class 4-LS Interest,
Class 4-LPO
Interest and Class 4-LIO Interest are Uncertificated Lower-Tier
Interests.
Uncertificated Middle-Tier Interest: A regular interest in the
Middle-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Any of
the Class 1-A-M1 Interest, Class 1-A-M3 Interest, Class 1-MIO
Interest, Class
1-MPO Interest, Class 1-A-MUR Interest, Class 2-A-M1 Interest,
Class 2-A-M3
Interest, Class 2-A-M8 Interest, Class 2-MIO Interest, Class 2-MPO
Interest,
Class 3-A-M1 Interest, Class 3-MIO Interest, Class 3-MPO Interest,
Class 4-A-M1
Interest, Class 4-MIO Interest, Class 4-MPO Interest, Class B-M1
Interest, Class
B-M2 Interest, Class B-M3 Interest, Class B-M4 Interest, Class B-M5
Interest and
Class B-M6 Interest are Uncertificated Middle-Tier Interests.
Undercollateralized Amount: As defined in Section 5.02.
Undercollateralized Group: As defined in Section 5.02.
Uninsured Cause: Any cause of damage to a Mortgaged Property,
the
cost of the complete restoration of which is not fully reimbursable
under the
hazard insurance policies required to be maintained pursuant to
Section 3.12.
Upper-Tier Certificate Sub-Account: The deemed sub-account of
the
Certificate Account designated by the Securities Administrator
pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Middle-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 Holder of
the Residual Certificate, (b) 1% of all Voting Rights shall be
allocated to the
Holders of the Class 1-A-2 Certificates, (c) 1% of all Voting
Rights shall be
allocated to the Holders of the Class 1-IO Certificates, (d) 1% of
all Voting
Rights shall be allocated to the Holders of the Class 2-A-2
Certificates, (e) 1%
of all Voting Rights shall be allocated to the Holders of the Class
CB-IO
Certificates and (f) the remaining Voting Rights shall be allocated
among
Holders of the remaining Classes of Certificates in proportion to
the
Certificate Balances of their respective Certificates on such
date.
Yield Maintenance Agreement: Either of the Class 1-A-1
Yield
Maintenance Agreement or the Class 2-A-1 Yield Maintenance
Agreement.
Yield Maintenance Agreement Payment: Either of the Class 1-A-1
Yield Maintenance Agreement Payment or the Class 2-A-1 Yield
Maintenance
Agreement Payment.
Yield Maintenance Amount: Either of the Class 1-A-1
Yield
Maintenance Amount or the Class 2-A-1 Yield Maintenance Amount.
Yield Maintenance Amount Shortfall: Either of the Class 1-A-1
Yield Maintenance Amount Shortfall or the Class 2-A-1 Yield
Maintenance
Amount Shortfall.
Section
1.02 Interest Calculations. All calculations of interest will
be
made on a 360-day year consisting of twelve (12) 30-day months. All
dollar
amounts calculated hereunder shall be rounded to the nearest penny
with one-half
of one penny being rounded down.
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 and the related
Mortgage Files,
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. It is agreed and understood by the parties hereto
that it is
not intended that any mortgage loan be included in the Trust that
is a
"High-Cost Home Loan" as defined in any of (i) the New Jersey Home
Ownership Act
effective November 27, 2003, (ii) the New Mexico Home Loan
Protection Act
effective January 1, 2004, (iii) the Massachusetts Predatory Home
Loan Practices
Act effective November 7, 2004 or (iv) the Indiana Home Loan
Practices Act,
effective January 1, 2005.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to 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
_______________________, without recourse," with all necessary
intervening
endorsements showing a complete chain of endorsements (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);
(ii) except as provided below and for each Mortgage Loan that is
not
a MERS
Mortgage Loan, the original Mortgage with evidence of recording
thereon,
or a copy thereof certified by the public recording office in
which such
mortgage has been recorded or, if the original Mortgage has not
been
returned from the applicable public recording office, a photocopy
of
the
original Mortgage, together with a certificate of the Servicer
certifying
that the original Mortgage has been delivered for recording in
the
appropriate public recording office of the jurisdiction in which
the
Mortgaged
Property is located and in the case of each MERS Mortgage Loan,
the
original Mortgage, noting the presence of the MIN of the
Mortgage
Loans and
either language indicating that the Mortgage Loan is a MOM Loan
or if the
Mortgage Loan was not a MOM Loan at origination, the original
Mortgage
and the assignment thereof to MERS, with evidence of recording
indicated
thereon, or a copy of the Mortgage certified by the public
recording
office in which such Mortgage has been recorded;
(iii) (A) in the case of each Mortgage Loan that is not a MERS
Mortgage
Loan, the original Assignment of Mortgage, from the Servicer,
which
assignment shall, be in form and substance acceptable for
recording,
or a
photocopy certified by the Servicer as a true and correct copy of
the
original
Assignment of Mortgage which has been sent for recordation and
(B)
originals of all recorded intervening Assignments of Mortgage,
or
copies
thereof, certified by the public recording office in which such
Assignments of
Mortgage have been recorded showing a complete chain of
title,
with evidence of recording thereon, or a copy thereof certified
by
the public
recording office in which such Assignment of Mortgage has been
recorded
or, if the original Assignment of Mortgage has not been
returned
from the
applicable public recording office, a photocopy of the original
Assignment
of Mortgage, together with a certificate of the Seller
certifying
that the original Assignment of Mortgage has been delivered for
recording
in the appropriate public recording office of the jurisdiction
in which
the Mortgaged Property is located;
(iv) originals, or copies thereof certified by the public
recording
office in
which such documents have been recorded, of each assumption,
extension,
modification, written assurance or substitution agreements, if
applicable, or if the original of such document has not been
returned from
the
applicable public recording office, a photocopy of such
original
document
together with certificate of the Servicer certifying the
original
of such
document has been delivered for recording in the appropriate
recording
office of the jurisdiction in which the Mortgaged Property is
located;
(v) with respect to Mortgage Loans that are not secured by
Cooperative Stock, the original policy of title insurance,
including
riders and
endorsements thereto, or if the policy has not yet been issued,
a written
commitment or interim binder or preliminary report of title
issued by
the title insurance or escrow company;
(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;
(ix) if the Mortgage Note or Mortgage or any other material
document
or instrument
relating to the Mortgage Loan has been signed by a person on
behalf of
the Mortgagor, the original power of attorney or other
instrument
that authorized and empowered such person to sign bearing
evidence
that such instrument has been recorded, if so required in the
appropriate jurisdiction where the Mortgaged Property is located
(or, in
lieu
thereof, a duplicate or conformed copy of such instrument,
together
with a
certificate of receipt from the recording office, certifying
that
such copy
represents a true and complete copy of the original and that
such
original has been or is currently submitted to be recorded in
the
appropriate governmental recording office of the jurisdiction where
the
Mortgaged
Property is located), or if the original power of attorney or
other such
instrument has been delivered for recording in the appropriate
public
recording office of the jurisdiction in which the Mortgaged
Property
is located; and
(x) for each Mortgage Loan secured by Cooperative Stock, the
originals
of the following documents or instruments: (A) a copy of the
Cooperative Lease and the assignment of such Cooperative Lease to
the
originator
of the Mortgage Loan, with all intervening assignments showing
a complete
chain of title and an assignment thereof by Seller; (B) the
Cooperative Stock Certificate together with an undated stock
power
relating
to such stock certificate executed in blank; (C) the
Recognition
Agreement
in substantially the same form as standard a "AZTECH" form; and
(D) the
executed UCC-1 financing statement with evidence of recording
thereon
and a filed UCC-3 financing statements.
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).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C)
all
assumption, extension, modification, written assurance or
substitution
agreements, if any, or (D) the original policy of title insurance,
if any,
(together with all riders thereto), if applicable, 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 applicable,
has not been
delivered to any of the Servicer, the Seller or the Depositor, as
applicable, by
the applicable title insurer, if any, in the case of clause (v)
above, the
Depositor shall promptly deliver or cause to be delivered to 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 (1) 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), there
has been a continuing delay at the applicable insurer and the
Depositor has
delivered an Officer's Certificate to such effect to the Trustee.
The Depositor
shall forward or cause to be forwarded to the Custodian, on behalf
of the
Trustee, (1) from time to time 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
Custodian on
the Trustee's behalf. 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.
With respect to each Mortgage Loan, as promptly as practicable
subsequent to such transfer and assignment, the Master Servicer
shall (except
for any MERS Mortgage Loans) enforce the obligations of the
Servicer pursuant to
the Servicing Agreement to (I) cause each Assignment of Mortgage to
be in proper
form for recording in the appropriate public office for real
property records
within the time period required in the Servicing Agreement and (II)
if
applicable, 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 Custodian, 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 accordance with the Servicing
Agreement.
No recording of an Assignment of Mortgage will be required in a
state if either (i) the Depositor furnishes to the Trustee and the
Securities
Administrator an unqualified Opinion of Counsel reasonably
acceptable to the
Trustee and the Securities Administrator 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 either
Rating Agency in
order to obtain the initial ratings on the Certificates on the
Closing Date.
Exhibit J attached hereto sets forth the list of all states where
recordation is
required by any Rating Agency to obtain the initial ratings of the
Certificates.
The Securities Administrator and the Trustee may rely and shall be
protected in
relying upon the information contained in such Exhibit J.
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 Custodian on the Trustee's behalf, will cause the Servicer to
remit to the
Master Servicer for deposit in the Master Servicer Custodial
Account the portion
of such payment that is required to be deposited in the such
account pursuant to
Section 3.09.
Section 2.02
Acceptance by the Custodian of the Mortgage Loans. Subject to
the provisions of the following paragraph and pursuant to the
Custodial
Agreement, the Custodian will declare that it holds and 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 cause the Custodian to deliver to the
Depositor and
the Master Servicer a certification in the form attached hereto as
Exhibit K
(the "Initial Certification") to the effect that, except as may be
specified in
a list of exceptions attached thereto, such Person 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 Custodian, on behalf of the Trustee, will review the Mortgage
Files in such
Person's possession, and shall deliver to the Depositor and the
Master Servicer
a certification in the form attached hereto as Exhibit L (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). In
performing any
such review, the Custodian may conclusively rely on the purported
genuineness of
any such document and any signature thereon.
If, in the course of such review, 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
Master Servicer, the Trustee, the Custodian or the Securities
Administrator
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 value of, or 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
Master
Servicer, the Seller, the Servicer and the Depositor of such
failure to meet the
requirements of Section 2.01 or of such breach and request that the
Servicer or
the Seller, as applicable, 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
Seller or the Servicer, as applicable, does not deliver such
missing document or
cure such defect or breach in all material respects during such
period, the
Trustee shall enforce the Servicer's or Seller's obligation (or
SunTrust Bank's
obligation, to the extent the Seller fails to perform its
obligations under the
Mortgage Loan Purchase Agreement), as the case may be, under the
Servicing
Agreement or the Mortgage Loan Purchase Agreement, as applicable,
and cause the
Servicer or Seller (or SunTrust Bank, to the extent the Seller
fails to perform
its obligations under the Mortgage Loan Purchase Agreement), as
applicable, to
either (a) 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 Purchase 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.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to this Section 2.02 shall be made more than
90 days after
the Closing Date unless the Depositor delivers to the Securities
Administrator
an Opinion of Counsel, which Opinion of Counsel shall not be at the
expense of
the Trustee, the Securities Administrator or the Trust Estate,
addressed to the
Trustee and the Securities Administrator, to the effect that such
substitution
will not (i) result in the imposition of the tax on "prohibited
transactions" on
any REMIC created hereunder or contributions after the Start-up
Day, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively or
(ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time
that any
Certificates are outstanding.
It is understood that the scope of 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. The Custodian shall not 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 with respect to a Mortgage Loan set
forth in clauses
(k) or (o) of Section 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 (or
SunTrust Bank, to the extent the Seller fails to perform its
obligations under
the Mortgage Loan Purchase Agreement) 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) or (o) of paragraph 3 of the Mortgage Loan Purchase Agreement,
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 (or SunTrust Bank, to the extent the Seller fails to perform
its
obligations under the Mortgage Loan Purchase Agreement) to cure or
to repurchase
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 remedy against the Servicer or
the Seller
(or SunTrust Bank, to the extent the Seller fails to perform its
obligations
under the Mortgage Loan Purchase Agreement) in respect of such
omission, defect
or breach available to the Trustee on behalf of the
Certificateholders.
With respect to the representations and warranties relating to
the
Mortgage Loans 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 Master
Servicer or the
Trustee that the substance of such representation or warranty is
inaccurate and
such inaccuracy materially and adversely affects the value of, or
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.
It is understood and agreed that the representations and
warranties
relating to the Mortgage Loans set forth in the Mortgage Loan
Purchase Agreement
shall survive delivery of the Mortgage Files to the Custodian on
the Trustee's
behalf and shall inure to the benefit of the Certificateholders
notwithstanding
any restrictive or qualified endorsement or assignment. It is
understood and
agreed that the obligations of the Seller (or SunTrust Bank, to the
extent the
Seller fails to perform its obligations under the Mortgage Loan
Purchase
Agreement) set forth in this Section 2.02 to cure, substitute for
or repurchase
a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement
constitute the
sole remedies available to the Certificateholders and to the
Trustee on their
behalf respecting a breach of the representations and warranties
contained in
the Mortgage Loan Purchase Agreement.
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 (or
SunTrust Bank, to the extent the Seller fails to perform its
obligations under
the Mortgage Loan Purchase Agreement) shall deliver to the
Custodian, 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
(or SunTrust Bank, to the extent the Seller fails to perform its
obligations
under the Mortgage Loan Purchase Agreement) or the Servicer has
substituted a
Substitute Mortgage Loan.
The Master 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 Master Servicer shall deliver the
amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee
and the
Custodian. Upon such substitution of a Mortgage Loan by the Seller
(or SunTrust
Bank, to the extent the Seller fails to perform its obligations
under the
Mortgage Loan Purchase Agreement) or the Servicer, each Substitute
Mortgage Loan
shall be subject to the terms of this Agreement in all respects,
the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its
obligations under
the Mortgage Loan Purchase Agreement) 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
paragraph 4 of
the Mortgage Loan Purchase Agreement 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 mortgage loan representations and
warranties made
pursuant to the Servicing Agreement. Upon any such substitution and
the deposit
to the Master Servicer Custodial Account of any required
Substitution Adjustment
Amount (as described in the next paragraph) and receipt by the
Trustee of a
Request for Release, the Trustee shall direct the Custodian to
release the
Mortgage File relating to such Defective Mortgage Loan to the
applicable Person
and shall execute and deliver at such Person's direction such
instruments of
transfer or assignment prepared by such Person, without recourse,
as shall be
necessary to vest title in such Person 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 (or SunTrust Bank, to the
extent
the Seller fails to perform its obligations under the Mortgage Loan
Purchase
Agreement) or the Servicer 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 substituted
by such
Person in a Loan Group as of the date of substitution is less than
the aggregate
Stated Principal Balance of all such Defective Mortgage Loans in a
Loan Group
substituted by such Person (after application of the principal
portion of the
Monthly Payments due in the month of substitution) (the
"Substitution Adjustment
Amount" for such Loan Group) plus an amount equal to the aggregate
of any
unreimbursed Advances with respect to such Defective Mortgage Loans
shall be
remitted by such Person to the Master Servicer for deposit to the
Master
Servicer Custodial Account on or before the 18th day of the month
succeeding the
calendar month during which the related Mortgage Loan is required
to be
purchased or replaced hereunder.
The Custodian shall retain possession and custody of each
Mortgage
File in accordance with and subject to the terms and conditions set
forth
herein. The Master Servicer shall cause to be promptly delivered to
the
Custodian 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 the Master Servicer's
possession
from time to time.
The Custodian 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). In
connection with making the certifications required hereunder, to
the extent a
title search or opinion of counsel has been provided in lieu of a
title policy
for any Mortgage Loan, the Custodian shall only be responsible for
confirming
that a title search or opinion of counsel has been provided for
such Mortgage
Loan.
The Securities Administrator 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 Master
Servicer. (a) The Master Servicer hereby makes the following
representations and
warranties to the Depositor, the Securities Administrator and the
Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered
and validly existing in good standing under the laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted and is licensed, qualified and in good
standing
in each of the states where a Mortgaged Property securing a
Mortgage
Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
the
Master
Servicer. The Master Servicer has 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 the
Master
Servicer and the consummation of the transactions contemplated
hereby
have been duly and validly authorized. This Agreement, assuming
due
authorization, execution and delivery by the other parties
hereto,
evidences
the valid, binding and enforceable obligation of the Master
Servicer,
subject to applicable law except as enforceability may be
limited by
(A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement
of the
rights of creditors and (B) general principles of equity,
whether
enforcement is sought in a proceeding in equity or at law. All
requisite
corporate
action has been taken by the Master Servicer to make this
Agreement
valid and binding upon the Master Servicer in accordance with
its
terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the Master Servicer is required or, if
required,
such
consent, approval, authorization or order has been or will, prior
to
the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the Master Servicer
and will
not result in the breach of any term or provision of the
charter
or by-laws
of the Master Servicer or result in the breach of any term or
provision
of, or conflict with or constitute a default under or result in
the
acceleration of any obligation under, any agreement, indenture or
loan
or credit
agreement or other instrument to which the Master Servicer or
its
property is subject, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Master Servicer
or its
property
is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the Master Servicer, threatened against the
Master
Servicer which, either individually or in the aggregate, would
result in
any material adverse change in the business, operations,
financial
condition, properties or assets of the Master Servicer, or in
any
material impairment of the right or ability of the Master Servicer
to
carry on
its business substantially as now conducted or which would draw
into
question the validity of this Agreement or the Mortgage Loans or
of
any action
taken or to be taken in connection with the obligations of the
Master
Servicer contemplated herein, or which would materially impair
the
ability of
the Master Servicer to perform under the terms of this
Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the respective Mortgage Files to 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 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 any 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 Custodian and shall inure to the benefit of the
Certificateholders,
notwithstanding any restrictive or qualified endorsement or
assignment.
Upon discovery by any of the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee that any of the
representations and
warranties set forth in this Section 2.04 is not accurate (referred
to herein as
a "breach") and that such breach materially and adversely affects
the value of,
or the interests of the Certificateholders in, the related Mortgage
Loan, the
party discovering such breach shall give prompt written notice to
the other
parties; 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. Within 90 days of its discovery or its receipt
of notice of
any such breach, the Depositor shall cure such breach in all
material respects
or shall either (i) repurchase the Mortgage Loan or any property
acquired in
respect thereof from the Trustee at a price equal to the Purchase
Price or (ii)
if within two years of the Closing Date, substitute for such
Mortgage Loan in
the manner described in Section 2.02; provided that if the breach
would cause
the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section
860G(a)(3) of the Code, any such repurchase or substitution must
occur within 90
days from the date the breach was discovered. The Purchase Price of
any
repurchase described in this paragraph and the Substitution
Adjustment Amount,
if any shall be remitted to the Master Servicer for deposit to the
Master
Servicer Custodial Account. It is understood and agreed that,
except with
respect to the second preceding sentence, the obligation of the
Depositor to
repurchase or substitute for any Mortgage Loan or Mortgaged
Property as to which
such a breach has occurred and is continuing shall constitute the
sole remedy
respecting such breach available to Certificateholders, or to the
Trustee on
behalf of Certificateholders, and such obligation shall survive
until
termination of the Trust hereunder.
Section
2.05 Designation of Interests in the REMICs. The Depositor
hereby
designates the Classes of Senior Certificates (other than the Class
1-A-R, Class
CB-IO and Class X-PO Certificates), the Components and the Classes
of
Subordinate Certificates 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 (i) the Uncertificated Middle-Tier Interests as
classes of
"regular interests" and the Class MR Interest as the single class
of "residual
interest" in the Middle-Tier REMIC and (ii) 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 of the Upper-Tier REMIC,
the
Middle-Tier REMIC and Lower-Tier 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 the Upper-Tier
REMIC, the
Middle-Tier REMIC and the Lower-Tier REMIC is December 25,
2035.
Section
2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares
that it holds
the Uncertificated Lower-Tier Interests on behalf of the
Middle-Tier REMIC and
the Certificateholders and that it holds the Uncertificated
Middle-Tier
Interests on behalf of the Upper-Tier REMIC and the
Certificateholders and (ii)
has executed and delivered to or upon the order of the Depositor,
in exchange
for the Mortgage Loans, Uncertificated Lower-Tier Interests and
Uncertificated
Middle-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
Middle-Tier
Interests and the Uncertificated Lower-Tier Interests, evidence
ownership of the
entire Trust Estate.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section
3.01 Master Servicing of the Mortgage Loans. For and on
behalf of the Certificateholders, the Master Servicer shall
supervise, monitor
and oversee the obligations of the Servicer to service and
administer the
Mortgage Loans in accordance with the terms of the Servicing
Agreement and shall
have full power and authority to do any and all things which it may
deem
necessary or desirable in connection with such master servicing
and
administration. In performing its obligations hereunder, the Master
Servicer
shall act in a manner consistent with this Agreement, subject to
the prior
sentence, and with Customary Servicing Procedures. Furthermore, the
Master
Servicer shall oversee and consult with the Servicer as necessary
from
time-to-time to carry out the Master Servicer's obligations
hereunder, shall
receive, review and evaluate all reports, information and other
data provided to
the Master Servicer by the Servicer and shall cause the Servicer to
perform and
observe the covenants, obligations and conditions to be performed
or observed by
the Servicer under the Servicing Agreement. The Master Servicer
shall
independently monitor the Servicer's servicing activities with
respect to each
Mortgage Loan, reconcile the results of such monitoring with such
information
provided in the previous sentence on a monthly basis and coordinate
corrective
adjustments to the Servicer's and the Master Servicer's records,
and based on
such reconciled and corrected information, prepare the Master
Servicer's
Certificate and any other information and statements required
hereunder. The
Master Servicer shall reconcile the results of its Mortgage Loan
monitoring with
the actual remittances of the Servicer to the Master Servicer
Custodial Account
pursuant to the Servicing Agreement.
Continuously from the date hereof until the termination of the
Trust, the Master Servicer shall enforce the obligations of the
Servicer to
collect all payments due under the terms and provisions of the
Mortgage Loans
when the same shall become due and payable to the extent such
procedures shall
be consistent with the Servicing Agreement.
The relationship of the Master Servicer (and of any successor to
the
Master Servicer as master servicer under this Agreement) to the
Trustee and the
Securities Administrator 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 Monitoring of Servicer. (a) The Master Servicer shall be
responsible for reporting to the Trustee, the Securities
Administrator and the
Depositor the compliance by the Servicer with its duties under the
Servicing
Agreement. In the review of the Servicer's activities, the Master
Servicer may
rely upon an officer's certificate of the Servicer with regard to
the Servicer's
compliance with the terms of the Servicing Agreement. In the event
that the
Master Servicer, in its judgment, determines that the Servicer
should be
terminated in accordance with the Servicing Agreement, or that a
notice should
be sent pursuant to the Servicing Agreement with respect to the
occurrence of an
event that, unless cured, would constitute grounds for such
termination, the
Master Servicer shall notify the Depositor, the Securities
Administrator and the
Trustee thereof and the Master Servicer shall issue such notice or
take such
other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer
under the
Servicing Agreement, and shall, in the event that the Servicer
fails to perform
its obligations in accordance with the Servicing Agreement, subject
to the
preceding paragraph, terminate the rights and obligations of the
Servicer
thereunder and act as successor Servicer of the related Mortgage
Loans under the
Servicing Agreement or cause the Trustee to enter in to a new
Servicing
Agreement with a successor Servicer selected by the Master
Servicer; provided,
however, it is understood and acknowledged by the parties hereto
that there will
be a period of transition (not to exceed 90 days) before the actual
servicing
functions can be fully transferred to such successor Servicer. Such
enforcement,
including, without limitation, the legal prosecution of claims,
termination of
the Servicing 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 Master
Servicer, in its good faith business judgment, would require were
it the owner
of the related Mortgage Loans. The Master Servicer and Trustee, as
applicable,
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 Loans or (ii) from a specific
recovery of costs,
expenses or attorneys fees against the party whom such enforcement
is directed,
provided that the Master Servicer and the Trustee, as applicable,
shall not be
required to prosecute or defend any legal action except to the
extent that the
Master Servicer or the Trustee, as applicable, shall have received
reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master
Servicer
or the Trustee, as applicable, related to any termination of the
Servicer,
appointment of a successor Servicer or the transfer and assumption
of servicing
by the Master Servicer or the Trustee, as applicable, with respect
to the
Servicing Agreement (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 the Servicer and (ii) all costs and expenses associated with the
complete
transfer of servicing, including all servicing files and all
servicing data and
the completion, correction or manipulation of such servicing data
as may be
required by the successor Servicer to correct any errors or
insufficiencies in
the servicing data or otherwise to enable the successor Servicer to
service the
Mortgage Loans in accordance with the Servicing Agreement) are not
fully and
timely reimbursed by the terminated Servicer, the Master Servicer
or the
Trustee, as applicable, shall be entitled to reimbursement of such
costs and
expenses from the Master Servicer Custodial Account; provided that
if such
Servicing Transfer Costs are ultimately reimbursed by the
terminated Servicer,
then the Master Servicer or the Trustee, as applicable, shall remit
such amounts
that are reimbursed by the terminated Servicer to the Master
Servicer Custodial
Account.
(d) The Master Servicer shall require the Servicer to comply
with
the remittance requirements and other obligations set forth in the
Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the
Servicer.
Section
3.03 Fidelity Bond; Errors and Omissions Insurance. The Master
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 involved in the performance of its
obligations as
Master Servicer hereunder. These policies must insure the Master
Servicer
against losses resulting from dishonest or fraudulent acts
committed by the
Master Servicer's personnel, any employees of outside firms that
provide data
processing services for the Master Servicer, and temporary contract
employees or
student interns. No provision of this Section 3.03 requiring such
fidelity bond
and errors and omissions insurance shall diminish or relieve the
Master 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 Fannie Mae in the Fannie Mae
Servicing Guide
or by Freddie Mac in the Freddie Mac Sellers' & Servicers'
Guide, as amended or
restated from time to time, or in an amount as may be permitted to
the Master
Servicer by express waiver of Fannie Mae or Freddie Mac. In the
event that any
such policy or bond ceases to be in effect, the Master 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 Master Servicer shall
provide, and the Master Servicer shall cause the Servicer to
provide in
accordance with the Servicing Agreement, 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 Master Servicer and the Servicer. In
fulfilling such
request for access, the Master Servicer shall not be responsible to
determine
the sufficiency of any information provided by the Servicer.
Nothing in this
Section 3.04 shall limit the obligation of the Master Servicer and
the Servicer
to observe any applicable law and the failure of the Master
Servicer or 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. (a) The Master Servicer shall not take, or permit the
Servicer (to the
extent such action is prohibited under the Servicing Agreement) to
take, any
action that would result in noncoverage under any applicable
Primary Mortgage
Insurance Policy of any loss which, but for the actions of the
Master Servicer
or the Servicer, would have been covered thereunder. The Master
Servicer shall
use its best reasonable efforts to cause the Servicer (to the
extent required
under the Servicing Agreement) to keep in force and effect (to the
extent that
the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance
with the
provisions of this Agreement and the Servicing Agreement, as
applicable. The
Master Servicer shall not, and shall not permit the Servicer (to
the extent
required under the Servicing Agreement) to, cancel or refuse to
renew any such
Primary Mortgage Insurance Policy that is in effect at the date of
the initial
issuance of the Mortgage Note and is required to be kept in force
hereunder
except in accordance with the provisions of this Agreement and the
Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the
Servicer
(to the extent required under the Servicing Agreement) to present,
on behalf of
the Trustee and the Certificateholders, claims to the insurer under
any Primary
Mortgage Insurance Policies and, in this regard, to take such
reasonable action
as shall be necessary to permit recovery under any Primary Mortgage
Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Sections
3.08 and
3.09, any amounts collected by the Master Servicer or the Servicer
under any
Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer
Custodial Account, subject to withdrawal pursuant to Section
3.11.
Section
3.06 Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer. The Depositor
may, but is not
obligated to, enforce the obligations of the Master Servicer
hereunder and may,
but is not obligated to, perform, or cause a designee to perform,
any defaulted
obligation of the Master Servicer hereunder and in connection with
any such
defaulted obligation to exercise the related rights of the Master
Servicer
hereunder; provided that the Master Servicer shall not be relieved
of any of its
obligations hereunder by virtue of such performance by the
Depositor or its
designee. None of the Securities Administrator, the Trustee or the
Depositor
shall have any responsibility or liability for any action or
failure to act by
the Master Servicer and the Securities Administrator, the Trustee
or the
Depositor shall not be obligated to supervise the performance of
the Master
Servicer hereunder or otherwise.
Section
3.07 Trustee to Act as Master Servicer. In the event the Master
Servicer or any successor master servicer shall for any reason no
longer be the
Master Servicer hereunder (including by reason of an Event of
Default), the
Trustee as trustee hereunder shall within 90 days of such time,
assume, if it so
elects, or shall appoint a successor Master Servicer to assume, all
of the
rights and obligations of the Master Servicer hereunder arising
thereafter. Any
such assumption shall be subject to Sections 7.02 and 8.05.
The predecessor Master Servicer at its expense shall, upon
request
of the Trustee, deliver to the assuming party all master servicing
documents and
records and an accounting of amounts collected or held by the
Master Servicer,
and shall transfer control of the Master Servicer Custodial Account
and any
investment accounts to the successor Master Servicer, and otherwise
use its best
efforts to effect the orderly and efficient transfer of its rights
and duties as
Master Servicer hereunder to the assuming party. The Trustee shall
be entitled
to be reimbursed from the predecessor Master Servicer (or the Trust
if the
predecessor Master Servicer is unable to fulfill such obligations)
for all
Master Servicing Transfer Costs.
Section
3.08 Servicer Custodial Account and Escrow Account. The Master
Servicer shall enforce the obligation of the Servicer to establish
and maintain
the Servicer Custodial Account in accordance with the Servicing
Agreement, with
records to be kept with respect thereto on a loan by loan basis,
into which
accounts shall be deposited within 48 hours (or as of such other
time specified
in the Servicing Agreement) of receipt all collections of principal
and interest
on any Mortgage Loan and all collections with respect to any REO
Property
received by the Servicer, including Principal Prepayments,
Insurance Proceeds,
Liquidation Proceeds, Recoveries and Advances made from the
Servicer's own funds
(less servicing compensation as permitted by the Servicing
Agreement in the case
of the Servicer) and all other amounts to be deposited in the
Servicer Custodial
Account. The Master Servicer is hereby authorized to make
withdrawals from and
deposits to the Servicer Custodial Account for purposes required or
permitted by
this Agreement.
To the extent required by the Servicing Agreement and by the
related
Mortgage Note and not violative of current law, the Master Servicer
shall
enforce the obligation of the Servicer to establish and maintain
one or more
escrow accounts (collectively, the "Escrow Account") and deposit
and retain
therein all collections from the Mortgagors (or Advances by the
Servicer) for
the payment of taxes, assessments, hazard insurance premiums or
comparable items
for the account of the Mortgagors. Nothing herein shall require the
Master
Servicer to compel the Servicer to establish an Escrow Account in
violation of
applicable law.
Section
3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account; Certificate Account and Reserve Funds. (a)
Continuously from
the date hereof until the principal and interest on all Mortgage
Loans are paid
in full, the Master Servicer shall enforce the obligations of the
Servicer to
collect all payments due under the terms and provisions of the
Mortgage Loans
when the same shall become due and payable to the extent such
procedures shall
be consistent with the Servicing Agreement.
(b) The Securities Administrator shall establish and maintain
the
Certificate Account, which shall be deemed to consist of six
sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00
a.m. New York
time, on each Distribution Date (or, if the Securities
Administrator is no
longer the same Person as, or an Affiliate of, the Master Servicer,
the Business
Day preceding each Distribution Date) all amounts on deposit in the
Master
Servicer Custodial Account for distribution to
Certificateholders.
(c) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be an Eligible Account and
which may be
deemed to be a sub-account of the Certificate Account for so long
as the Master
Servicer and the Securities Administrator are the same Person. The
Master
Servicer shall, promptly upon receipt, deposit in the Master
Servicer Custodial
Account and retain therein any amounts which are required to be
deposited in the
Master Servicer Custodial Account by the Master Servicer.
(d) On a daily basis within one (1) Business Day of receipt
(except
as otherwise specifically provided herein), the Master Servicer
shall deposit or
cause to be deposited the following payments and collections
remitted to the
Master Servicer by the Servicer from the Servicer Custodial Account
pursuant to
the Servicing Agreement or otherwise or received by the Master
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:
(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
related 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) required to be deposited to an
Escrow
Account pursuant to Section 3.08 and (B) any Insurance Proceeds
released
from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with
respect to the Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted
by
the
Servicer;
(vi) Periodic Advances made by the Servicer pursuant to the
Servicing
Agreement (or, if applicable, by the Master Servicer or the
Trustee
pursuant to Section 3.21) and any Compensating Interest paid by
the
Servicer pursuant to the Servicing Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts
and
all
Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to
be
deposited, it may at any time withdraw such amount from the Master
Servicer
Custodial Account, any provision herein to the contrary
notwithstanding. All
funds required to be deposited in the Master Servicer Custodial
Account shall be
held by the Master Servicer in trust for the Certificateholders
until disbursed
in accordance with this Agreement or withdrawn in accordance with
Section 3.11.
(e) Each institution at which the Master Servicer Custodial
Account
is maintained shall invest the funds therein as directed in writing
by the
Master Servicer in Permitted Investments, which shall mature not
later than 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 Master Servicer Custodial
Account
Reinvestment Income shall be for the benefit of the Master Servicer
as part of
its master servicing compensation and shall be remitted to the
Master Servicer
monthly as provided herein. The amount of any losses realized in
the Master
Servicer Custodial Account incurred in any such account in respect
of any such
investments shall promptly be deposited by the Master Servicer from
its own
funds in the Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is
maintained
shall invest the funds therein if directed in writing by the
Securities
Administrator in Permitted Investments that are obligations of the
institution
that maintains the Certificate Account, which shall mature on the
Distribution
Date and 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 income and gains net of any losses
realized since
the preceding Distribution Date from Permitted Investments of funds
in the
Certificate Account shall be for the benefit of the Securities
Administrator as
its compensation and the amount of any losses realized in the
Certificate
Account in respect of any such Permitted Investments shall promptly
be deposited
by the Securities Administrator from its own funds in the
Certificate Account.
(g) The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and the Rating Agencies of
any proposed
change of location of the Master Servicer Custodial Account not
later than 30
days after and not more that 45 days prior to any change thereof.
The Securities
Administrator shall give notice to the Depositor, the Trustee, the
Master
Servicer and the Rating Agencies of any proposed change of the
location of the
Certificate Account maintained by the Securities Administrator not
later than 30
days after and not more than 45 days prior to any change thereof.
The creation
of the Master Servicer Custodial Account and the Certificate
Account shall be
evidenced by a certification substantially in the form attached
hereto as
Exhibit F.
(h) The Securities Administrator shall designate each of the
Middle-Tier Certificate Sub-Account and the Upper-Tier Certificate
Sub-Account
as a sub-account of the Certificate Account. On each Distribution
Date (other
than the Final Distribution Date, if such Final Distribution Date
is in
connection with a purchase of the assets of the Trust Estate by the
Depositor),
the Securities Administrator shall, from funds available on deposit
in the
Certificate Account, be deemed to deposit into the Middle-Tier
Certificate
Sub-Account, the Lower-Tier Distribution Amount. The Securities
Administrator
shall then immediately, from funds available in the Middle-Tier
Certificate
Sub-Account, be deemed to deposit into the Upper-Tier Certificate
Sub-Account,
the Middle-Tier Distribution Amount.
(i) (i) The Securities Administrator shall establish and
maintain
the Class 1-A-1 Reserve Fund and the Class 2-A-1 Reserve Fund, held
in trust for
the benefit of the Holders of the Class 1-A-1 and Class 2-A-1
Certificates,
respectively, and Banc of America Securities LLC. The Securities
Administrator
shall deposit in the applicable Reserve Fund on the date received
by it, any
related Yield Maintenance Agreement Payment received from the
Counterparty for
the related Distribution Date. Funds on deposit in the Reserve
Funds shall
remain uninvested. On each Distribution Date, the Securities
Administrator shall
withdraw from the applicable Reserve Fund any related Yield
Maintenance
Agreement Payment received in respect of such Distribution Date and
any Excess
Funds in such Reserve Fund and shall distribute such amounts to the
Class 1-A-1
or Class 2-A-1 Certificates, as the case may be, in an amount up to
the sum of
the applicable Yield Maintenance Amount for such Distribution Date
and any
applicable Yield Maintenance Amount Shortfalls for prior
Distribution Dates. Any
amounts remaining in the Class 1-A-1 or the Class 2-A-1 Reserve
Fund on the date
on which the Class Certificate Balance of the Class 1-A-1
Certificates or Class
2-A-1 Certificates is reduced to zero (after payment of the related
Yield
Maintenance Amount for such date and the amount of any related
Yield Maintenance
Amount Shortfalls from previous Distribution Dates not yet paid)
shall be
distributed by the Securities Administrator to Banc of America
Securities LLC.
(ii) The Securities Administrator shall account for the Reserve
Funds and
the Yield Maintenance Agreements and the rights with respect
thereto as
assets of the Grantor Trust and not as assets of any REMIC
created pursuant
to this Agreement. The beneficial owner of the Yield
Maintenance Agreements and the Reserve Funds is Banc of America
Securities
LLC.
(iii) Any amounts in the applicable Reserve Fund paid by the
Securities
Administrator pursuant to this Section 3.09(i) to the Class
1-A-1 or
Class 2-A-1 Certificates shall be accounted for by the
Securities
Administrator as amounts paid to the Class 1-A-1 or Class 2-A-1
Certificates from the Grantor Trust. In addition, the
Securities
Administrator shall account for the right of the Class 1-A-1 and
Class
2-A-1
Certificates to receive amounts from the applicable Reserve Fund
as
rights in
limited recourse interest rate cap contracts written by Banc of
America
Securities LLC in favor of the Class 1-A-1 and Class 2-A-1
Certificates.
(iv) For federal tax return and information reporting purposes,
the
right of
the Holders of the Class 1-A-1 and Class 2-A-1 Certificates to
receive
payments under the applicable Yield Maintenance Agreement shall
be
assigned a
value of zero as of the Closing Date.
Section
3.10 Access to Certain Documentation and Information Regarding
the
Mortgage Loans. The Master Servicer shall afford and shall enforce
the
obligation of the Servicer to afford the Securities Administrator
and the
Trustee 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 Master Servicer or the Servicer.
Section
3.11 Permitted Withdrawals from the Certificate Account and the
Master Servicer Custodial Account. (a) The Securities Administrator
shall
withdraw funds from the Certificate Account for distributions
to
Certificateholders in the manner specified in this Agreement. In
addition, the
Master Servicer may from time to time make withdrawals from the
Master Servicer
Custodial Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained
by
it), the
Servicing Fee to which it is entitled pursuant to the Servicing
Agreement
and to pay itself any Master Servicer Custodial Account
Reinvestment Income;
(ii) to pay to the Securities Administrator, the Custodian and
the
Trustee
any amounts due to the Securities Administrator, the Custodian
and
the
Trustee under this Agreement (including, but not limited to,
all
amounts
provided for under Section 9.11, other than the amounts
provided
for in the
first and second sentences of Section 9.11);
(iii) to reimburse the Servicer (or, if applicable, itself or
the
Trustee)
for unreimbursed Advances made pursuant to the Servicing
Agreement
(or in the case of itself or the Trustee, pursuant to Section
3.21),
such right of reimbursement pursuant to this clause (iii) being
limited
first to amounts received on the Mortgage Loans serviced by the
Servicer
in the related Loan Group in respect of which any such Advance
was made
and then limited to amounts received on all the Mortgage Loans
serviced
by the Servicer (or, if applicable, the Master Servicer or the
Trustee)
in respect of which any such Advance was made;
(iv) to reimburse the Servicer (or, if applicable, itself or
the
Trustee)
for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to
amounts
received
on the Mortgage Loans in the same Loan Group as the Mortgage
Loan(s) in
respect of which such Nonrecoverable Advance was made and then
limited to
amounts received on all the Mortgage Loans serviced by the
Servicer
(of, if applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicer for Insured Expenses from the
related
Insurance
Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02 or 2.04,
all
amounts
received thereon after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred
by
either of
them and reimbursable pursuant to this Agreement, including but
not
limited to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial
Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial
Account
upon
termination of this Agreement pursuant to Section 10.01.
If the Master Servicer shall remit to the Securities Administrator
any amount
not required to be remitted, it may at any time direct the
Securities
Administrator to withdraw such amount from the Certificate Account,
any
provision herein to the contrary notwithstanding. Such direction
may be
accomplished by delivering an Officer's Certificate to the
Securities
Administrator which describes the amounts remitted in error to the
Securities
Administrator for deposit to the Certificate Account.
(b) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be on deposit in the Upper-Tier Certificate
Sub-Account
shall be used to make payments on the Regular Certificates and the
Class 1-A-R
Certificate (in respect of the Class UR Interest) as provided in
Sections 5.01
and 5.02. The Certificate Account shall be cleared and terminated
upon
termination of this Agreement pursuant to Section 10.01.
Section
3.12 Maintenance of Hazard Insurance and Other Insurance. For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of
the Servicer
under the Servicing Agreement to maintain or cause to be maintained
fire, flood
and hazard insurance with extended coverage customary in the area
where the
Mortgaged Property is located in accordance with the Servicing
Agreement. It is
understood and agreed that such insurance provided for in this
Section 3.12
shall be with insurers meeting the eligibility requirements set
forth in the
Servicing Agreement and that no earthquake or other additional
insurance is to
be required of any Mortgagor or to be maintained on property
acquired in respect
of a defaulted loan, other than pursuant to such applicable laws
and regulations
as shall at any time be in force and as shall require such
additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by
the
Master Servicer, or by the Servicer, under any insurance policies
(other than
amounts to be applied to the restoration or repair of the property
subject to
the related Mortgage or released to the Mortgagor in accordance
with the
Servicing Agreement) shall be deposited into the Master Servicer
Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11.
Any cost
incurred by the Master Servicer or the Servicer in maintaining any
such
insurance if the Mortgagor defaults in its obligation to do so
shall be added to
the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so
permit; provided, however, that the addition of any such cost shall
not be taken
into account for purposes of calculating the distributions to be
made to
Certificateholders and shall be recoverable by the Master Servicer
or the
Servicer pursuant to Sections 3.08 and 3.09.
Section
3.13 Presentment of Claims and Collection of Proceeds. The
Master Servicer shall (to the extent provided in the Servicing
Agreement) cause
the Servicer to prepare and present on behalf of the Trustee and
the
Certificateholders all claims under the Insurance Policies and take
such actions
(including the negotiation, settlement, compromise or enforcement
of the
insured's claim) as shall be necessary to realize recovery under
such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to the
Servicer and
remitted to the Master Servicer) in respect of such policies, bonds
or contracts
shall be promptly deposited in the Master Servicer Custodial
Account upon
receipt, except that any amounts realized that are to be applied to
the repair
or restoration of the related Mortgaged Property as a condition
precedent to the
presentation of claims on the related Mortgage Loan to the insurer
under any
applicable Insurance Policy need not be so deposited (or
remitted).
Section
3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. To the extent provided in the Servicing Agreement and
to the extent
Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer
shall cause the Servicer to enforce such clauses in accordance with
the
Servicing Agreement. If applicable law prohibits the enforcement of
a
due-on-sale clause or such clause is otherwise not enforced in
accordance with
the Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the
original Mortgagor may be released from liability in accordance
with the
Servicing Agreement.
Section
3.15 Realization Upon Defaulted Mortgage Loans; REO
Property.(a) The Master Servicer shall cause the Servicer (to the
extent
required under the Servicing Agreement) to foreclose upon or
otherwise
comparably convert the ownership of Mortgaged Properties securing
such of the
Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent
payments, all
in accordance with the Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate
of
sale shall be taken in the name of the Trust for the benefit of
the
Certificateholders, or its nominee, on behalf of the
Certificateholders. The
Master Servicer shall enforce the obligation of the Servicer, to
the extent
provided in the Servicing Agreement, to (i) cause the name of the
Trust to be
placed on the title to such REO Property and (ii) ensure that the
title to such
REO Property references this Agreement. The Master Servicer shall,
to the extent
provided in the Servicing Agreement, cause the Servicer to sell any
REO Property
as expeditiously as possible and in accordance with the provisions
of this
Agreement and the Servicing Agreement, as applicable. Pursuant to
its efforts to
sell such REO Property, the Master Servicer shall cause the
Servicer to protect
and conserve such REO Property in the manner and to the extent
required by the
Servicing Agreement, subject to the REMIC Provisions. In the event
that the
Trust Estate acquires any Mortgaged Property as aforesaid or
otherwise in
connection with a default or imminent default on a Mortgage Loan,
the Master
Servicer shall enforce the obligation of the Servicer to dispose of
such
Mortgaged Property within the time period specified in the
Servicing Agreement,
but in any event within three years after the acquisition by the
Servicer for
the Trust (such period, the "REO Disposition Period") unless (i)
the Servicer
provides to the Trustee, the Master Servicer and the Securities
Administrator an
Opinion of Counsel to the effect that the holding by the Trust of
such Mortgaged
Property subsequent to three years after its acquisition will not
result in the
imposition of taxes on "prohibited transactions" of the Trust as
defined in
Section 860F of the Code or under the law of any state in which
real property
securing a Mortgage Loan owned by the Trust is located or cause any
REMIC
created hereunder to fail to qualify as a REMIC for federal income
tax purposes
or for state tax purposes under the laws of any state in which real
property
securing a Mortgage Loan owned by the Trust is located at any time
that any
Certificates are outstanding or (ii) the Servicer shall have
applied for and
received an extension of such period from the Internal Revenue
Service, in which
case the Trust Estate may continue to hold such Mortgaged Property
for the
period of such extension.
(c) The Master Servicer shall, to the extent required by the
Servicing Agreement, cause the Servicer to deposit all funds
collected and
received in connection with the operation of any REO Property in
the Servicer
Custodial Account.
(d) The Servicer, upon the final disposition of any REO
Property,
shall be entitled to reimbursement for any related unreimbursed
Advances and
other unreimbursed advances as well as any unpaid Servicing Fees
from
Liquidation Proceeds received in connection with the final
disposition of such
REO Property; provided that any such unreimbursed Advances as well
as any unpaid
Servicing Fees may be reimbursed or paid, as the case may be, prior
to final
disposition, out of any net rental income or other net amounts
derived from such
REO Property.
(e) The Liquidation Proceeds from the final disposition of the
REO
Property, net of any payment to the Servicer as provided above
shall be
deposited in the Servicer Custodial Account on or prior to the
Determination
Date in the month following receipt thereof and be remitted by wire
transfer in
immediately available funds to the Master Servicer for deposit into
the Master
Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, the
Master
Servicer shall not permit any Mortgaged Property acquired by the
Trust to be
rented (or allowed to continue to be rented) or otherwise used for
the
production of income by or on behalf of the Trust in such a manner
or pursuant
to any terms that would (i) cause such Mortgaged Property to fail
to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of
the Code,
(ii) result in the receipt by any REMIC created hereunder of any
"income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code or
any "net income from foreclosure property" which is subject to
taxation under
the REMIC Provisions or (iii) subject any REMIC created hereunder
to the
imposition of any federal, state or local income taxes on the
income earned from
such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless
the Master Servicer or the Servicer, as applicable, has agreed to
indemnify and
hold harmless the Trust with respect to the imposition of any such
taxes.
Notwithstanding any other provision of this Agreement, the
Master
Servicer and the Securities Administrator, as applicable, shall
comply with all
federal withholding requirements with respect to payments to
Certificateholders
of interest or original issue discount that the Master Servicer or
the
Securities Administrator reasonably believes are applicable under
the Code. The
consent of Certificateholders shall not be required for any such
withholding.
Without limiting the foregoing, the Master Servicer agrees that it
will not
withhold with respect to payments of interest or original issue
discount in the
case of a Certificateholder that has furnished or caused to be
furnished an
effective Form W-8 or an acceptable substitute form or a successor
form and who
is not a "10 percent shareholder" within the meaning of Code
Section
871(h)(3)(B) or a "controlled foreign corporation" described in
Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the
event the
Securities Administrator withholds any amount from interest or
original issue
discount payments or advances thereof to any Certificateholder
pursuant to
federal withholding requirements, the Securities Administrator
shall indicate
the amount withheld to such Certificateholder.
Section
3.16 Trustee to Cooperate; Release of Mortgage Files. Upon the
payment in full of any Mortgage Loan, or the receipt by the Master
Servicer or
the Servicer of a notification that payment in full will be
escrowed in a manner
customary for such purposes, the Master Servicer or the Servicer
will
immediately notify the Trustee and the Custodian by delivering, or
causing to be
delivered, two copies (one of which will be returned to the
Servicer with the
Mortgage File) of a Request for Release (which may be delivered in
an electronic
format acceptable to the Custodian and the Trustee and the Master
Servicer or
the Servicer). Upon receipt of such request, the Custodian shall
within seven
(7) Business Days release the related Mortgage File to the Master
Servicer or
the Servicer. The Trustee shall at the Master Servicer's or the
Servicer's
direction execute and deliver to the Master Servicer or the
Servicer the request
for reconveyance, deed of reconveyance or release or satisfaction
of mortgage or
such instrument releasing the lien of the Mortgage relating to the
Mortgage
Loan, in each case provided by the Master Servicer or the Servicer,
together
with the Mortgage Note with written evidence of cancellation
thereon. If the
Mortgage has been recorded in the name of MERS or its designee, the
Master
Servicer shall enforce the Servicer's obligation under the
Servicing Agreement
take all necessary action to reflect the release of the Mortgage on
the records
of MERS. Expenses incurred in connection with any instrument of
satisfaction or
deed of reconveyance shall be chargeable to the related Mortgagor
of the
Mortgage Loan.
From
time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose
collection under
any Primary Mortgage Insurance Policy, any policy of flood
insurance, any
fidelity bond or errors or omissions policy, or for the purposes of
effecting a
partial release of any Mortgaged Property from the lien of the
Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or
any of the
other documents included in the Mortgage File, the Custodian shall,
upon
delivery to the Custodian of a Request for Release signed by a
Master Servicing
Officer or a Servicing Officer, release the Mortgage File within
seven (7)
Business Days to the Master Servicer or the Servicer. Subject to
the further
limitations set forth below, the Master Servicer or the Servicer
shall cause the
Mortgage Files so released to be returned to the Custodian when the
need
therefor no longer exists, unless the Mortgage Loan is liquidated
and the
proceeds thereof are deposited in the Servicer Custodial Account,
in which case
the Servicer shall deliver to the Custodian a Request for Release,
signed by a
Servicing Officer.
If the Master Servicer or the Servicer at any time seeks to
initiate
a foreclosure proceeding in respect of any Mortgaged Property as
authorized by
this Agreement or the Servicing Agreement, the Master Servicer or
the Servicer
shall deliver or cause to be delivered to the Trustee, for
signature, as
appropriate, any court pleadings, requests for trustee's sale or
other documents
necessary to effectuate such foreclosure or any legal action
brought to obtain
judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain
a deficiency judgment or to enforce any other remedies or rights
provided by the
Mortgage Note or the Mortgage or otherwise available at law or in
equity.
Section
3.17 Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee Notwithstanding any
other provisions
of this Agreement, the Master Servicer shall cause the Servicer to
transmit to
the Custodian as required by this Agreement and the Servicing
Agreement all
documents and instruments in respect of a Mortgage Loan coming into
the
possession of the Servicer from time to time and shall account
fully to the
Trustee for any funds received by the Master Servicer or the
Servicer or which
otherwise are collected by the Master Servicer or the Servicer as
Liquidation
Proceeds, Recoveries or Insurance Proceeds in respect of any
Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control
of, the
Master Servicer or the Servicer in respect of any Mortgage Loans,
whether from
the collection of principal and interest payments or from
Liquidation Proceeds,
including but not limited to, any funds on deposit in the Master
Servicer
Custodial Account or the Servicer Custodial Account, shall be held
by the Master
Servicer or the Servicer for and on behalf of the Trustee and shall
be and
remain the sole and exclusive property of the Trustee, subject to
the applicable
provisions of this Agreement and the Servicing Agreement. The
Master Servicer
also agrees that it shall not, and shall enforce any requirement
under the
Servicing Agreement that the Servicer shall not, knowingly create,
incur or
subject any Mortgage File or any funds that are deposited in any
Master Servicer
Custodial Account, the Servicer Custodial Account, the Certificate
Account or
any Escrow Account, or any funds that otherwise are or may become
due or payable
to the Trustee for the benefit of the Certificateholders, to any
claim, lien,
security interest, judgment, levy, writ of attachment or other
encumbrance
created by the Master Servicer or the Servicer, or assert by legal
action or
otherwise any claim or right of setoff against any Mortgage File or
any funds
collected on, or in connection with, a Mortgage Loan, except,
however, that the
Master Servicer shall be entitled to set off against and deduct
from any such
funds any amounts that are properly due and payable to the Master
Servicer under
this Agreement.
Section
3.18 Master Servicer Compensation. As compensation for its
services hereunder, the Master Servicer shall be entitled to a fee
in an amount
agreed upon between the Master Servicer and the Securities
Administrator,
payable by the Securities Administrator out of its own funds and
not out of any
funds of the Trust Estate. The Master Servicer shall also be
entitled to
additional compensation in the form of the Master Servicer
Custodial Account
Reinvestment Income. The Master Servicer shall be required to pay
all expenses
incurred by it in connection with its master servicing activities
hereunder and
shall not be entitled to reimbursement therefor except as
specifically provided
in this Agreement.
Section
3.19 Annual Statement as to Compliance. The Master Servicer
shall
deliver to the Securities Administrator (and the Securities
Administrator will
forward to the Trustee and each Rating Agency), no later than March
15 following
the end of each calendar year commencing with March 2006, an
Officer's
Certificate, signed by two officers of the Master Servicer,
stating, as to the
signers thereof, that (a) a review of the activities of the Master
Servicer
during the preceding calendar year and of the performance of the
Master Servicer
under this Agreement or similar agreements has been made under such
officer's
supervision, and (b) to the best of such officer's knowledge, based
on such
review, the Master Servicer has fulfilled all its obligations under
this
Agreement throughout such year, or, if there has been a default in
the
fulfillment of any such obligation, specifying each such default
known to such
officer and the nature and status thereof.
In addition, the Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a similar
statement to the
Securities Administrator relating to compliance with the Servicing
Agreement.
Section
3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements The Master Servicer shall enforce
the Servicer's
obligation under the Servicing Agreement to provide a report to the
Securities
Administrator, as required to be provided each year pursuant to the
Servicing
Agreement, prepared by a firm of independent public accountants
(who may also
render other services to the Servicer or any affiliate thereof)
which is a
member of the American Institute of Certified Public Accountants
(i) to the
effect that such firm has, with respect to the Servicer's overall
servicing
operations, examined such operations in accordance with the
requirements of the
Uniform Single Attestation Program for Mortgage Bankers, stating
such firm's
conclusions relating thereto or (ii) commencing with calendar year
2007, in
accordance with Rule 1-02(a)(3) and Rule 2-02(g) of Regulation S-X
under the
1933 Act and the Exchange Act, that attests to, and reports on an
assessment
made by the Servicer of its compliance with the applicable
servicing criteria
set forth in Item 1122(d) of Regulation AB, as required by Rules
13a-18 and
15d-18 under the Exchange Act, and Item 1122(b) of Regulation
AB.
Section
3.21 Advances. The Master Servicer shall enforce the
obligations
of the Servicer to make a Periodic Advance in accordance with the
Servicing
Agreement. The Servicer shall be entitled to be reimbursed from the
Servicer
Custodial Account for all Advances of its own funds made pursuant
to the
Servicing Agreement. Based upon information set forth in the
servicer reports,
the Master Servicer shall inform the Securities Administrator of
the amount of
the Periodic Advance to be made by the Servicer on each applicable
Advance Date
no later than the related Remittance Date. If the Servicer fails to
make any
required Periodic Advance pursuant to the Servicing Agreement, the
Master
Servicer shall (i) unless the Master Servicer determines that such
Periodic
Advance would not be recoverable in its good faith business
judgment, make such
Periodic Advance not later than the Business Day preceding the
related
Distribution Date and (ii) to the extent such failure leads to the
termination
of the Servicer and until such time as a successor Servicer is
appointed,
continue to make Periodic Advances required pursuant to the
Servicing Agreement
for any Distribution Date, within the same time frame set forth in
(i) above,
unless the Master Servicer determines (to the extent provided in
the Servicing
Agreement) that such Periodic Advance would not be recoverable.
Section
3.22 Reports to the Securities and Exchange Commission. (a)
The Securities Administrator and the Master Servicer shall
reasonably cooperate
with the Depositor in connection with the Trust's satisfying its
reporting
requirements under the Exchange Act. Without limiting the
generality of the
foregoing, the Securities Administrator shall prepare on behalf of
the Trust any
monthly Current Reports on Form 8-K (each, a "Monthly Form 8-K")
and Annual
Reports on Form 10-K (each, a "Form 10-K") customary for similar
securities as
required by the Exchange Act and the rules and regulations of the
Securities and
Exchange Commission thereunder, and the Securities Administrator
shall sign and
file (via the Securities and Exchange Commission's Electronic Data
Gathering and
Retrieval System) such Forms (other than any Annual Report on Form
10-K, which
shall be signed by the Master Servicer) on behalf of the Trust.
Notwithstanding
the previous sentence, the Depositor shall file the Monthly Form
8-K in
connection with the filing of this Agreement.
(b)
Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date,
including a copy of
the monthly statement to Certificateholders delivered pursuant to
Section
5.04(b) (each, a "Distribution Date Statement") for such
Distribution Date as an
exhibit thereto. On or prior to March 30th of each year (or such
earlier date as
may be required by the Exchange Act and the rules and regulations
of the
Securities and Exchange Commission), commencing in the calendar
year following
the date of this Agreement, the Securities Administrator shall file
a Form 10-K,
in substance as required by applicable law or applicable Securities
and Exchange
Commission staff's interpretations. Such Form 10-K shall include as
exhibits the
Master Servicer's and the Servicer's annual statement of compliance
described
under Section 3.19 and the accountant's reports referenced under
Section 3.20,
in each case, to the extent they have been timely delivered to the
Securities
Administrator. If they are not so timely delivered, the Securities
Administrator
shall file an amended Form 10-K including such documents as
exhibits reasonably
promptly after they are delivered to the Securities Administrator.
The
Securities Administrator shall have no liability with respect to
any failure to
properly prepare or file such periodic reports resulting from or
relating to the
Securities Administrator's inability or failure to obtain any
information not
resulting from its own negligence, willful misconduct or bad faith.
The Form
10-K shall also include a certification in the form attached hereto
as Exhibit M
(the "Certification"), which shall be signed by a senior officer of
the Master
Servicer in charge of the master servicing functions. The Master
Servicer shall
deliver the Certification to the Securities Administrator three (3)
Business
Days prior to the latest date on which the Form 10-K may be timely
filed. The
Securities Administrator, the Depositor and the Master Servicer
shall reasonably
cooperate to enable the Securities and Exchange Commission
requirements with
respect to the Trust to be met in the event that the Securities and
Exchange
Commission issues additional interpretive guidelines or promulgates
rules or
regulations, or in the event of any other change of law that would
require
reporting arrangements or the allocation of responsibilities with
respect
thereto, as described in this Section 3.22, to be conducted or
allocated in a
different manner.
(c) Prior to the latest date on which the Form 10-K may be
timely
filed each year, the Securities Administrator shall sign and
deliver to the
Master Servicer a certification (in the form attached hereto as
Exhibit N) for
the benefit of the Master Servicer and its officers, directors and
affiliates
(provided, however, that the Securities Administrator shall not
undertake an
analysis of any accountants' report attached as an exhibit to the
Form 10-K). In
addition, the Securities Administrator shall indemnify and hold
harmless the
Master Servicer, each person, if any, who "controls" the Master
Servicer within
the meaning of the 1933 Act, as amended, and their respective
officers,
directors, agents and affiliates (collectively, the "Master
Servicer Indemnified
Parties") from and against any losses, damages, penalties, fines,
forfeitures,
reasonable and necessary legal fees and related costs, judgments
and other costs
and expenses arising out of or based upon any inaccuracy in the
certification
provided by the Securities Administrator pursuant to this Section
3.22(c), any
breach by the Securities Administrator or any of its officers,
directors, agents
or affiliates of its obligations under this Section 3.22(c) or any
material
misstatements or omission contained in the certification delivered
pursuant to
this Section 3.22(c) or the Securities Administrator's negligence,
bad faith or
willful misconduct in connection therewith. If the indemnification
provided for
herein is unavailable or insufficient to hold harmless the Master
Servicer
Indemnified Parties, then the Securities Administrator agrees that
it shall
contribute to the amount paid or payable by such Master Servicer
Indemnified
Parties as a result of the losses, claims, damages or liabilities
of such Master
Servicer Indemnified Parties in such proportion as is appropriate
to reflect the
relative fault of such Master Servicer Indemnified Parties on the
one hand and
the Securities Administrator on the other in connection with a
breach of the
Securities Administrator's obligations under this Section 3.22(c),
any material
misstatement or omission contained in the certification delivered
pursuant to
this Section 3.22(c) or the Securities Administrator's negligence,
bad faith or
willful misconduct in connection therewith. The Master Servicer
hereby
acknowledges and agrees that the Depositor and the Securities
Administrator are
relying on the Master Servicer's performance of its obligations
under Sections
3.19 and 3.20 in order to perform their respective obligations
under this
Section 3.22.
(d) Prior to the latest date on which the Form 10-K may be
timely
filed each year, the Master Servicer shall enforce the obligation
of the
Servicer to provide the certification required pursuant to the
Servicing
Agreement.
(e) Upon any filing with the Securities and Exchange Commission,
the
Securities Administrator shall promptly deliver to the Depositor a
copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of
this
Section shall only apply with respect to periods for which the
Securities
Administrator is obligated to file reports on Form 8-K or 10-K. On
or prior to
January 30, 2006, unless otherwise requested by the Depositor, the
Securities
Administrator shall prepare, execute and file with the Securities
and Exchange
Commission a Form 15 Suspension Notification with respect to the
Trust. At any
time after the filing of a Form 15 Suspension Notification, if the
Depositor or
the Certificate Registrar determines that the number of
Certificateholders of
record exceeds the number set forth in Section 15(d) of the
Exchange Act or the
regulations promulgated pursuant thereto which would cause the
Trust to again
become subject to the reporting requirements of the Exchange Act,
it shall
promptly notify the Securities Administrator and the Securities
Administrator
shall recommence preparing and filing reports on Form 8-K and 10-K
as required
pursuant to this Section and the parties hereto will again have the
obligations
set forth in paragraphs (a) through (e) of this Section until such
time as the
Securities Administrator is again able to file with the Securities
and Exchange
Commission a Form 15 Suspension Notification with respect to the
Trust.
ARTICLE
IV
MASTER SERVICER'S CERTIFICATE
Section
4.01 Master Servicer's Certificate. Each month, not later than
12:00 noon Eastern time on the 18th calendar day of such month (or
if such day
is not a Business Day, the following Business Day), the Master
Servicer shall
deliver to the Securities Administrator, a Master Servicer's
Certificate based
solely on the information provided by the Servicer (in substance
and format
mutually acceptable to the Master Servicer and the Securities
Administrator)
certified by a Master Servicing Officer setting forth the
information necessary
in order for the Securities Administrator to perform its
obligations under this
Agreement. The Securities Administrator may conclusively rely upon
the
information contained in a Master Servicer's Certificate delivered
by the Master
Servicer for all purposes hereunder and shall have no duty to
verify or
re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section
5.01 Distributions. On each Distribution Date, based solely
on the information in the Master Servicer's Certificate, the
Securities
Administrator shall distribute out of the Certificate Account, the
Middle-Tier
Certificate Sub-Account or the Upper-Tier Certificate Sub-Account,
as applicable
(to the extent funds are available therein), to each
Certificateholder of record
on the related Record Date (other than as provided in Section 10.01
respecting
the final distribution) (a) by check mailed to such
Certificateholder entitled
to receive a distribution on such Distribution Date at the address
appearing in
the Certificate Register, or (b) upon written request by the Holder
of a
Certificate (other than a Residual Certificate), by wire transfer
or by such
other means of payment as such Certificateholder and the
Securities
Administrator shall agree upon, such Certificateholder's Percentage
Interest in
the amount to which the related Class of Certificates is entitled
in accordance
with the priorities set forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor,
the
Master Servicer, the Securities Administrator or the Trustee shall
in any way be
responsible or liable to Holders of any Class of Certificates in
respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of
Certificates shall be applied first to the distribution of interest
thereon
and then to principal thereon.
Section
5.02 Priorities of Distributions. (a) On each
Distribution Date, the Securities Administrator shall withdraw from
the
Certificate Account (to the extent funds are available therein) (1)
to the
extent not previously paid, the amounts payable to the Master
Servicer, the
Securities Administrator and the Trustee pursuant to Section
3.09(f) and Section
3.11(a) and shall pay such funds to itself, the Master Servicer and
the Trustee,
as applicable, and (2) based solely on the information contained in
the Master
Servicer's Certificate, the Pool Distribution Amount (after the
payment of the
Servicing Fees for such Mortgage Loans and expenses and indemnities
reimbursable
pursuant to this Agreement, in each case to the extent not
previously retained
by or distributed to the Servicer, the Securities Administrator,
the Master
Servicer or the Trustee) for each Loan Group, and shall apply such
funds to the
Certificates in the following order of priority and to the extent
of such funds,
paying Group 1 solely from the Pool Distribution Amount for Loan
Group 1, paying
Group 2 solely from the Pool Distribution Amount for Loan Group 2,
paying Group
3 solely from the Pool Distribution Amount for Loan Group 3, paying
Group 4
solely from the Pool Distribution Amount for Loan Group 4 and
paying the
Subordinate Certificates (including amounts used to pay Class PO
Deferred
Amounts) from the combined Pool Distribution Amounts for all Loan
Groups, in the
following order of priority and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class
CB-IO
Certificates) and the Class IO Component of such Group, if any, an
amount
allocable to interest
equal to the Interest Distribution Amount for such
Class or
Component Interest Distribution Amount for such Component and
any
shortfall
being allocated among such Classes or Component in proportion
to
the amount
of the Interest Distribution Amount or Component Interest
Distribution Amount, as the case may be, that would have been
distributed
in the
absence of such shortfall;
(ii) concurrently, to each Class of Senior Certificates (other
than
the Class
1-A-2, Class 1-IO, Class 2-A-2, Class CB-IO and Class X-PO
Certificates) and the Class PO Component of such Group, pro rata,
based on
their
Senior Principal Distribution Amount and PO Principal Amount,
respectively, (A) to such Senior Certificates, in an aggregate
amount up
to the
Senior Principal Distribution Amount for such Group, such
distribution to be allocated among such Classes in accordance with
Section
5.02(b)
and (B) to the Class PO Component of such Group in an aggregate
amount up
to the applicable PO Principal Amount for such Group;
(iii) to the applicable Class PO Component of such Group, any
applicable
Class PO Deferred Amount (after giving effect to the
distribution to such Class PO Component of the Class PO Recovery
for the
Related
Loan Group), up to the Subordinate Principal Distribution
Amount
for all
Loan Groups from amounts otherwise distributable, first to the
Class B-6
Certificates pursuant to clause (iv)(L) below, second to the
Class B-5
Certificates, pursuant to clause (iv)(J) below, third to the
Class B-4
Certificates, pursuant to clause (iv)(H) below, fourth to the
Class B-3
Certificates, pursuant to clause (iv)(F) below, fifth to the
Class B-2
Certificates, pursuant to clause (iv)(D) below and finally to
the Class
B-1 Certificates, pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to
paragraph
(d) below,
in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(B) to the
Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amount pursuant
to
clause (iii) above until the Class Certificate Balance thereof
has
been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amount pursuant
to
clause (iii) above until the Class Certificate Balance thereof
has
been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amount pursuant
to
clause (iii) above until the Class Certificate Balance thereof
has
been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amount pursuant
to
clause (iii) above until the Class Certificate Balance thereof
has
been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal
to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amount pursuant
to
clause (iii) above until the Class Certificate Balance thereof
has
been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amount pursuant
to
clause (iii) above until the Class Certificate Balance thereof
has
been reduced to zero; and
(v) to the Holder of the Class 1-A-R Certificate, any amounts
remaining
in the Upper-Tier Certificate Sub-Account and the Middle-Tier
Certificate Sub-Account and any remaining Pool Distribution
Amounts.
No Class of Certificates or Component will be entitled to any
distributions with respect to the amount payable pursuant to clause
(ii)
of the
definition of "Interest Distribution Amount" or "Component
Interest
Distribution Amount" after its Class Certificate Balance or
Notional
Amount, as
the case may be, has been reduced to zero.
For any Group and on any Distribution Date, amounts distributed
in
respect of
the Class PO Deferred Amounts (including the distribution of
the Class
PO Recoveries) will not reduce the Component Balance of the
applicable
Class PO Component.
All distributions in respect of the Interest Distribution Amount
for
a Class or
the Component Interest Distribution Amount for a Component will
be applied
first with respect to the amount payable pursuant to clause (i)
of the
definition of "Interest Distribution Amount" or "Component
Interest
Distribution Amount" as applicable, and second with respect to the
amount
payable
pursuant to clause (ii) of such definitions.
On each Distribution Date, the Securities Administrator shall
distribute
any Reimbursement Amount sequentially to each Class of
Certificates then outstanding which bore the loss to which such
Reimbursement Amount
relates, beginning with the most senior of such
Classes of
Certificates, up to, with respect to each Class, the amount of
loss borne
by such Class. Any Reimbursement Amount remaining after the
application described in the preceding sentence shall be included
in the
Pool
Distribution Amount for the applicable Loan Group.
(vi) Distributions on the Uncertificated Lower-Tier Interests.
On
each
Distribution Date, interest shall be distributed in respect of
the
Uncertificated Lower-Tier Interests (other than the Class 1-LPO
Interest,
Class
2-LPO Interest, Class 3-LPO Interest and Class 4-LPO Interest,
at
the
pass-through rate thereon, as described in the next to last
paragraph
of this Section
5.02(a)(vi). All distributions of principal shall be made
first to
the Class 1-LPO Interest, Class 2-LPO Interest, Class 3-LPO
Interest
and Class 4-LPO Interest, so as to keep the principal balances
thereof at
all times equal to the Component Balances of the Class 1-PO
Component,
the Class 2-PO Component, the Class 3-PO Component and the
Class 4-PO
Component, respectively; second, to the Class 1-LS Interest,
Class 2-LS
Interest, Class 3-LS Interest and Class 4-LS Interest, so as to
keep the
principal balances thereof (computed to eight decimal places)
equal to
0.100% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2,
Loan Group 3 and Loan Group 4, respectively (except that if any
such
amount is greater than on the preceding Distribution Date, the
least
amount of
principal shall be distributed to the Class 1-LS Interest,
Class
2-LS
Interest, Class 3-LS Interest and Class 4-LS Interest, such that
the
Subordinate Balance Ratio is maintained), and third, any
remaining
principal
to the Class 1-L Interest, Class 2-L Interest, Class 3-L
Interest
and Class 4-L Interest. Any distributions of principal made to
the
Uncertificated Lower-Tier Interests pursuant to this paragraph
shall
be made
from the Group 1 Mortgage Loans to the Uncertificated
Lower-Tier
Interests
beginning with the numeral "1," from the Group 2 Mortgage Loans
to the
Uncertificated Lower-Tier Interests beginning with the numeral
"2,"
from the
Group 3 Mortgage Loans to the Uncertificated Lower-Tier
Interests
beginning
with the numeral "3" and from the Group 4 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral
"4."
Realized Losses shall be applied after all distributions have
been
made on
each Distribution Date first, to the Class 1-LPO Interest,
Class
2-LPO
Interest, Class 3-LPO Interest and Class 4-LPO Interest, so as
to
keep their
principal balances equal to the Component Balances of the Class
1-PO
Component, the Class 2-PO Component, the Class 3-PO Component and
the
Class 4-PO
Component, respectively; second, to the Class 1-LS Interest,
Class 2-LS
Interest, Class 3-LS Interest and Class 4-LS Interest, so as to
keep the
principal balances thereof (computed to eight decimal places)
equal to
0.100% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2,
Loan Group 3 and Loan Group 4, respectively (except that if any
such
amount is greater than on the preceding Distribution Date, the
least
amount of
Realized Losses shall be allocated to the Class 1-LS Interest,
Class 2-LS
Interest, Class 3-LS Interest and Class 4-LS Interest such that
the
Subordinate Balance Ratio is maintained); and third, the
remaining
Realized
Losses shall be allocated to the Class 1-L Interest, Class 2-L
Interest,
Class 3-L Interest and Class 4-L Interest. Any Realized Losses
allocated
to the Uncertificated Lower-Tier Interests pursuant to this
paragraph
shall be (a) from Realized Losses allocated to Loan Group 1 in
the case
of Uncertificated Lower-Tier Interests beginning with the
numeral
"1," (b)
from Realized Losses allocated to Loan Group 2 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "2,"
(c)
from
Realized Losses allocated to Loan Group 3 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "3"
and (d)
from
Realized Losses allocated to Loan Group 4 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral
"4."
As of any date, the aggregate principal balance of the Class
1-L
Interest
and the Class 1-LS Interest shall equal the aggregate Pool
Stated
Principal
Balance (Non-PO Portion) of Loan Group 1. As of any date, the
aggregate
principal balance of the Class 2-L Interest and the Class 2-LS
Interest
shall equal the aggregate Pool Stated Principal Balance (Non-PO
Portion)
of Loan Group 2. As of any date, the aggregate principal
balance
of the
Class 3-L Interest and the Class 3-LS Interest shall equal the
aggregate
Pool Stated Principal Balance (Non-PO Portion) of Loan Group 3.
As of any
date, the aggregate principal balance of the Class 4-L Interest
and the
Class 4-LS Interest shall equal the aggregate Pool Stated
Principal
Balance (Non-PO Portion) of Loan Group 4. As of any date, (i)
the
principal balance of the Class 1-LPO Interest will be equal to
the
Component
Balance of the Class 1-PO Component, (ii) the principal balance
of the
Class 2-LPO Interest will be equal to the Component Balance of
the
Class 2-PO
Component, (iii) the principal balance of the Class 3-LPO
Interest
will be equal to the Component Balance of the Class 3-PO
Component
and (iv) the principal balance of the Class 4-LPO Interest will
be equal
to the Component Balance of the Class 4-PO Component. As of any
date, (i)
the notional amount of the Class 1-LIO Interest will be equal
to
the Class
1-IO Notional Amount, (ii) the notional amount of the Class
2-LIO
Interest will be equal to the Class 2-IO Notional Amount, (iii)
the
notional
amount of the Class 3-LIO Interest will be equal to the Class
3-IO
Notional Amount and (iv) the notional amount of the Class 4-LIO
Interest
will be equal to the Class 4-IO Notional Amount.
The pass-through rate with respect to the Class 1-L Interest and
the
Class 1-LS
Interest shall be 5.750% per annum. The pass-through rate with
respect to
the Class 2-L Interest and the Class 2-LS Interest shall be
5.857% per
annum. The pass-through rate with respect to the Class 3-L
Interest
and the Class 3-LS Interest shall be 6.500% per annum. The
pass-through rate with respect to the Class 4-L Interest and the
Class
4-LS
Interest shall be 6.500% per annum. The pass-through rate with
respect to
the Class 1-LIO Interest shall be the same as the Pass-Through
Rate for
the Class 1-IO Certificates, as such rate is described in the
Preliminary Statement. The pass-through rate with respect to the
Class
2-LIO
Interest, Class 3-LIO Interest and Class 4-LIO Interest shall be
the
same as
the Pass-Through Rate for the Class 2-IO Component, Class 3-IO
Component
and Class 4-IO Component, respectively, as each such rate is
described
in the Preliminary Statement. The Class 1-LPO Interest, Class
2-LPO
Interest, Class 3-LPO Interest and Class 4-LPO Interest are
principal-only interests and are not entitled to distributions
of
interest.
Any Non-Supported Interest Shortfalls and Relief Act Reductions
will
be
allocated to each Uncertificated Lower-Tier Interest in the
same
relative
proportions as interest is allocated to such Uncertificated
Lower-Tier
Interest. Amounts distributed to the Uncertificated Lower-Tier
Interests
in respect of principal and interest with respect to any
Distribution Date are referred to herein collectively as the
"Lower-Tier
Distribution Amount."
(vii) Distributions on the Uncertificated Middle-Tier Interests.
On
each
Distribution Date, each Uncertificated Middle-Tier Interest
(other
than the
Class 1-MIO Interest, Class 2-MIO Interest, Class 3-MIO
Interest
and Class
4-MIO Interest) shall receive distributions in respect of
principal
in an amount equal to the amount of principal distributed to
its
respective
Corresponding Upper-Tier Class, Classes or Component, as
provided
herein. On each Distribution Date, each Uncertificated
Middle-Tier Interest (other than the Class 1-MPO Interest, Class
2-MPO
Interest,
Class 3-MPO Interest and Class 4-MPO Interest) shall receive
distributions in respect of interest in an amount equal to the
Interest
Accrual
Amounts and Unpaid Interest Shortfalls, as the case may be, in
respect of
its Corresponding Upper-Tier Class, Classes or Component, in
each case
to the extent actually distributed thereon. Such amounts
distributed to the Uncertificated Middle-Tier Interests in respect
of
principal
and interest with respect to any Distribution Date are referred
to herein
collectively as the "Middle-Tier Distribution Amount."
As of any date, the principal balance or notional amount of
each
Uncertificated Middle-Tier Interest equals the aggregate of the
Class
Certificate Balances, Component Balance or Notional Amounts of
the
respective
Corresponding Upper-Tier Class, Classes or Component or, in the
case of
the Class 1-A-M1 Interest or Class 2-A-M1 Interest, the Class
Certificate Balance of the Class 1-A-1 Certificates and Class
2-A-2
Certificates, respectively. The initial principal balance or
notional
amount of
each Uncertificated Middle-Tier Interest equals the aggregate
of
the
Initial Class Certificate Balances, Component Balance or
Initial
Notional
Amounts of the respective Corresponding Upper-Tier Class,
Classes
or
Component or, in the case of the Class 1-A-M1 Interest or Class
2-A-M1
Interest,
the Initial Class Certificate Balance of the Class 1-A-1
Certificates and Class 2-A-1 Certificates, respectively.
The pass-through rate with respect to the Class 1-A-M1
Interest,
Class
1-A-M3 Interest and Class 1-A-MUR Interest shall be 5.750% per
annum. The
pass-through rate with respect to the Class 2-A-M1 Interest and
Class
2-A-M3 Interest shall be 5.750% per annum. The pass-through
rate
with
respect to the Class 2-A-M8 Interest shall be 6.000% per annum.
The
pass-through rate with respect to the Class 3-A-M1 Interest shall
be
6.500% per
annum. The pass-through rate with respect to the Class 4-A-M1
Interest
shall be 6.500% per annum. The pass-through rate with respect
to
the Class
B-M1 Interest, Class B-M2 Interest, Class B-M3 Interest, Class
B-M4
Interest, Class B-M5 Interest and Class B-M6 Interest shall be
the
weighted
average of the Class 1-LS Interest, Class 2-LS Interest, Class
3-LS
Interest and Class 4-LS Interest. The pass-through rate with
respect
to the
Class 1-MIO Interest shall be a per annum rate equal to the
Pass-Through Rate of the Class 1-IO Certificates. The pass-through
rate
with
respect to the Class 2-MIO Interest shall be a per annum rate
equal
to the
Pass-Through Rate of the Class 2-IO Component. The pass-through
rate with
respect to the Class 3-MIO Interest shall be a per annum rate
equal to
the Pass-Through Rate of the Class 3-IO Component. The
pass-through rate with respect to the Class 4-MIO Interest shall be
a per
annum rate
equal to the Pass-Through Rate of the Class 4-IO Component. The
Class
1-MPO Interest, Class 2-MPO Interest, Class 3-MPO Interest and
Class
4-MPO
Interest are principal-only interests and are not entitled to
distributions of interest.
(b) (i) On each Distribution Date prior to the Senior Credit
Support
Depletion Date, the amount distributable to the Group 1 Senior
Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be
distributed,
sequentially, as follows:
first, to the Class 1-A-R Certificate, until its Class
Certificate
Balance has been reduced to zero;
second, concurrently, to the Class 1-A-3 and Class 1-A-4
Certificates, pro rata, up to the Group 1 Priority Amount for such
Distribution
Date;
third, $1,000, concurrently, to the Class 1-A-1 and Class 1-A-8
Certificates, pro rata, until their Class Certificate Balances have
been reduced
to zero;
fourth, $157,244, sequentially, to the Class 1-A-5 and Class
1-A-6
Certificates, in that order, until their Class Certificate Balances
have been
reduced to zero;
fifth, concurrently, to the Class 1-A-1 and Class 1-A-8
Certificates, pro rata, until their Class Certificate Balances have
been reduced
to zero;
sixth, sequentially, to the Class 1-A-5 and Class 1-A-6
Certificates, in that order, until their Class Certificate Balances
have been
reduced to zero;
seventh, to the Class 1-A-7 Certificates, until their Class
Certificate Balance has been reduced to zero; and
eighth, concurrently, to the Class 1-A-3 and Class 1-A-4
Certificates, pro rata, until their Class Certificate Balances have
been reduced
to zero.
(ii) With respect to the Group 2 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior
Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be
distributed,
concurrently, as follows:
(A) 57.2001849975%, sequentially, as follows:
(i) concurrently, to the Class 2-A-3 and Class 2-A-4
Certificates, pro rata, up to the Group 2 Priority Amount for
such
Distribution Date;
(ii) $1,000, to the Class 2-A-1 Certificates, until their
Class
Certificate Balance has been reduced to zero;
(iii) $151,645, sequentially, to the Class 2-A-5 and Class
2-A-6
Certificates, in that order, until their Class Certificate
Balances
have been
reduced to zero;
(iv) sequentially, to the Class 2-A-1, Class 2-A-5 and Class
2-A-6
Certificates, in that order, until their Class Certificate
Balances
have been
reduced to zero;
(v) to the Class 2-A-7 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(vi) concurrently, to the Class 2-A-3 and Class 2-A-4
Certificates, pro rata, until their Class Certificate Balances have
been
reduced to
zero; and
(B) 42.7998150025%, to the Class 2-A-8 Certificates, until
their
Class Certificate Balance has been reduced to zero.
(iii) With respect to the Group 3 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion
Date, the amount distributable to the Group 3 Senior Certificates
pursuant to
Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class
3-A-1 Certificates, until their Class Certificate Balance has been
reduced to
zero.
(iv) With respect to the Group 4 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 4 Senior
Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be
distributed
to the Class 4-A-1 Certificates, until their Class Certificate
Balance has been
reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set
forth above, the
portion of the Pool Distribution Amount with respect to a Loan
Group available
to be distributed as principal of the Senior Certificates of the
Related Group
shall be distributed, concurrently, as principal of such Classes of
Senior
Certificates, pro rata, on the basis of their respective Class
Certificate
Balances immediately prior to that Distribution Date, until the
Class
Certificate Balances thereof are reduced to zero; provided,
however, any amounts
allocated to the Class 1-A-8 Certificates pursuant to this
paragraph will be
distributed to the Class 1-A-1 Certificates until the Class
Certificate Balance
of the Class 1-A-1 Certificates has been reduced to zero.
The Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO
Certificates are Interest Only Certificates and are not entitled
to
distributions in respect of principal.
(v) Notwithstanding the foregoing, on each Distribution Date
prior
to the Senior Credit Support Depletion Date but on or after the
date on which
the aggregate Class Certificate Balance of the Senior Certificates
of a Group
has been reduced to zero, amounts otherwise distributable as
principal payments
on the Subordinate Certificates together with the applicable Senior
Principal
Distribution Amount will be paid as principal to the Classes of
Senior
Certificates of the other Groups in accordance with the priorities
set forth for
the applicable Group in (b) (i), (ii), (iii) or (iv) above,
provided that on
such Distribution Date (a) the Aggregate Subordinate Percentage for
such
Distribution Date is less than twice the initial Aggregate
Subordinate
Percentage or (b) the outstanding principal balance of all Mortgage
Loans
(including, for this purpose, any Mortgage Loans in foreclosure,
any REO
Property and any Mortgage Loan for which the Mortgagor has filed
for bankruptcy
after the Closing Date) delinquent 60 days or more (averaged over
the preceding
six month period), as a percentage of the aggregate Class
Certificate Balance of
the Subordinate Certificates, is equal to or greater than 50%. If
the Senior
Certificates of two or more Groups remain outstanding, the
distributions
described above will be made to the Senior Certificates of such
Groups, pro
rata, in proportion to the aggregate class balance of the Senior
Certificates of
each such Group. In addition, after giving effect to the previous
sentence, if
on any Distribution Date the aggregate Class Certificate Balance of
the Senior
Certificates of a Group is greater than the Adjusted Pool Amount
(Non-PO
Portion) of related Loan Group (any such Group, the
"Undercollateralized Group"
and any such excess, the "Undercollateralized Amount"), all amounts
otherwise
distributable as principal on the Subordinate Certificates pursuant
to
5.02(a)(iv)(L), (J), (H), (F), (D) and (B), in that order, will be
paid as
principal to the Senior Certificates of the Undercollateralized
Group together
with the applicable Senior Principal Distribution Amount in
accordance with the
priorities set forth for the applicable Group above under (b)(i),
(ii), (iii) or
(iv) until the aggregate Class Certificate Balance of the Senior
Certificates of
the Undercollateralized Group equals the Adjusted Pool Amount
(Non-PO Portion)
of the Related Loan Group. If two or more Groups are
Undercollateralized Groups,
the distributions described above will be made, pro rata, in
proportion to the
amount by which the aggregate class balance of the Senior
Certificates of each
such Group exceeds the Pool Principal Balance (Non-PO Portion) of
the related
Loan Group. Also, the amount of any Class Unpaid Interest
Shortfalls and
Component Unpaid Interest Shortfalls with respect to the
Undercollateralized
Group (including any Class Unpaid Interest Shortfalls or Component
Unpaid
Interest Shortfalls for such Distribution Date) will be paid to
the
Undercollateralized Group pursuant to Section 5.02(a)(i) prior to
the payment of
any Undercollateralized Amount from amounts otherwise distributable
as principal
on the Subordinate Certificates pursuant to Section 5.02(a)(iv)(L),
(J), (H),
(F), (D) and (B), in that order. Such amount will be paid to the
Senior
Certificates and Components (other than the Class PO Component) of
such
Undercollateralized Group in accordance with the priorities set
forth in Section
5.02(a)(i) up to their Interest Distribution Amounts or Component
Interest
Distribution Amounts for such Distribution Date.
The Class PO Deferred Amounts for the Class PO Components will
be
paid from amounts otherwise distributable as principal on the
Subordinate
Certificates before any payments are made pursuant to the preceding
paragraph.
(c) On each Distribution Date, Accrued Certificate Interest for
each
Class of Certificates (other than the Class CB-IO Certificates) and
Accrued
Component Interest for each Class IO Component for such
Distribution Date shall
be reduced by such Class' or Component's pro rata share, based on
such Class'
Interest Distribution Amount or Component's Component Interest
Distribution
Amount for such Distribution Date, without taking into account the
allocation
made by this Section 5.02(c), of an amount equal to the sum of (A)
Non-Supported
Interest Shortfalls, (B) on and after the Senior Credit Support
Depletion Date,
any other Realized Loss on the Mortgage Loans allocable to interest
and (C)
Relief Act Reductions incurred on any Mortgage Loans during the
calendar month
preceding the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in
Section
5.02(a)(iv), if with respect to any Class of Subordinate
Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate
Balances
immediately prior to such Distribution Date of all Classes of
Subordinate
Certificates that have a higher numerical Class designation than
such Class,
divided by (ii) the aggregate Pool Stated Principal Balance (Non-PO
Portion) of
the Loan Groups immediately prior to such Distribution Date (for
each Class, the
"Fractional Interest") is less than the Original Fractional
Interest for such
Class, no distribution of principal will be made to any Classes of
Subordinate
Certificates junior to such Class (the "Restricted Classes"), and
the Class
Certificate Balances of the Restricted Classes of Subordinate
Certificates will
not be used in determining the Pro Rata Share for the Subordinate
Certificates
that are not Restricted Classes. If the aggregate Class Certificate
Balances of
the Subordinate Certificates that are not Restricted Classes are
reduced to
zero, notwithstanding the previous sentence, any funds remaining
will be
distributed sequentially to the Subordinate Certificates that are
Restricted
Classes in order of their respective numerical Class designations
(beginning
with the Class of Subordinate Certificates that is a Restricted
Class then
outstanding with the lowest numerical Class designation).
(e) Any amounts distributed to the Class 1-A-1 and Class 2-A-1
Certificates from the applicable Reserve Fund shall be deemed to be
a
distribution to such Certificates from the Grantor Trust as
payments on a
notional principal contract in the nature of a cap contract written
by Banc of
America Securities LLC.
Section 5.03
Allocation of Losses. (a) No later than five (5)
Business Days prior to the related Distribution Date, the Master
Servicer shall
inform the Securities Administrator in writing with respect to each
Mortgage
Loan: (1) whether any Realized Loss is a Deficient Valuation or a
Debt Service
Reduction, (2) of the amount of such loss or Deficient Valuation,
or of the
terms of such Debt Service Reduction and (3) of the total amount of
Realized
Losses on the Mortgage Loans in each Loan Group. Based on such
information, the
Securities Administrator shall determine the total amount of
Realized Losses on
the Mortgage Loans in each Loan Group with respect to the related
Distribution
Date. Realized Losses shall be allocated to the Certificates by a
reduction in
the Class Certificate Balances of the designated Classes pursuant
to the
operation of Section 5.03(b).
(b) The Component Balance of the Class PO Component of a Group
shall
be reduced on each Distribution Date by the amount, if any, by
which the
Component Balance of such Class PO Component (after giving effect
to the amounts
to be distributed as a distribution of principal and the allocation
of Realized
Losses on such Distribution Date) exceeds the Adjusted Pool Amount
(PO Portion)
for such Loan Group for such Distribution Date.
The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class
designation shall
be reduced or increased on each Distribution Date by the amount, if
any,
necessary such that the aggregate of the Class Certificate Balances
of all
outstanding Classes of Certificates (after giving effect to the
amount to be
distributed as a distribution of principal and the allocation of
the Class PO
Deferred Amounts on such Distribution Date) equals the sum of the
Adjusted Pool
Amounts (Non-PO Portion) for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates of a Group in the
aggregate
shall be reduced or increased on each Distribution Date by the
amount, if any,
necessary such that the aggregate of the Class Certificate Balances
of all
outstanding Classes of Senior Certificates of such Group (after
giving effect to
the amount to be distributed as a distribution of principal on such
Distribution
Date) equals the Adjusted Pool Amount (Non-PO Portion) for the
Related Loan
Group for such Distribution Date.
Any such reduction or increase shall be allocated among the
Senior
Certificates of such Group based on the Class Certificate Balances
immediately
prior to such Distribution Date until the Class Certificate
Balances thereof
have been reduced to zero.
(c) Any reduction or increase in the Class Certificate Balance of
a
Class of Certificates pursuant to Section 5.03(b) above shall be
allocated among
the Certificates of such Class in proportion to their respective
Percentage
Interests.
(d) The calculation of the amount to be distributed as principal
to
any Class of Subordinate Certificates with respect to a
Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the
allocation of
any Realized Losses for such Distribution Date; provided, however,
the actual
payment of principal to the Classes of Certificates shall be made
subsequent to
the allocation of Realized Losses for such Distribution Date. In
the event that
after the allocation of Realized Losses for a Distribution Date,
the Calculated
Principal Distribution for a Class of Subordinate Certificates is
greater than
the Class Certificate Balance of such Class, the excess shall be
distributed
first, sequentially, to the Classes of Subordinate Certificates
then outstanding
(beginning with the Class of Subordinate Certificates then
outstanding with the
lowest numerical designation) until the respective Class
Certificate Balance of
each such Class is reduced to zero and then to the Senior
Certificates of the
related Group, pro rata, in accordance with the priorities set
forth in Section
5.02.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 1-A-4 Loss Allocation Amount
is greater
than zero, the Class Certificate Balance of the Class 1-A-4
Certificates will be
reduced by the Class 1-A-4 Loss Allocation Amount and,
notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 1-A-3
Certificates will not
be reduced by the Class 1-A-4 Loss Allocation Amount.
Notwithstanding the
foregoing, on any Distribution Date in which the Class 1-A-3 Loss
Amount exceeds
the Class Certificate Balance of the Class 1-A-4 Certificates prior
to any
reduction for the Class 1-A-4 Loss Allocation Amount, such excess
will be
distributed in reduction of the Class Certificate Balance of the
Class 1-A-3
Certificates. After the Senior Credit Support Depletion Date, on
any
Distribution Date on which the Class 1-A-8 Loss Allocation Amount
is greater
than zero, the Class Certificate Balance of the Class 1-A-8
Certificates will be
reduced by the Class 1-A-8 Loss Allocation Amount and,
notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 1-A-1
Certificates will not
be reduced by the Class 1-A-8 Loss Allocation Amount.
Notwithstanding the
foregoing, on any Distribution Date in which the Class 1-A-1 Loss
Amount exceeds
the Class Certificate Balance of the Class 1-A-8 Certificates prior
to any
reduction for the Class 1-A-8 Loss Allocation Amount, such excess
will be
distributed in reduction of the Class Certificate Balance of the
Class 1-A-1
Certificates. After the Senior Credit Support Depletion Date, on
any
Distribution Date on which the Class 2-A-4 Loss Allocation Amount
is greater
than zero, the Class Certificate Balance of the Class 2-A-4
Certificates will be
reduced by the Class 2-A-4 Loss Allocation Amount and,
notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 2-A-3
Certificates will not
be reduced by the Class 2-A-4 Loss Allocation Amount.
Notwithstanding the
foregoing, on any Distribution Date in which the Class 2-A-3 Loss
Amount exceeds
the Class Certificate Balance of the Class 2-A-4 Certificates prior
to any
reduction for the Class 2-A-4 Loss Allocation Amount, such excess
will be
distributed in reduction of the Class Certificate Balance of the
Class 2-A-3
Certificates.
Any increase allocated to the Class 1-A-3 Certificates pursuant
to
Section 5.03(b) will instead increase the Class Certificate Balance
of the Class
1-A-4 Certificates, any increase allocated to the Class 1-A-1
Certificates
pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance
of the Class 1-A-8 Certificates and any increase allocated to the
Class 2-A-3
Certificates pursuant to Section 5.03(b) will instead increase the
Class
Certificate Balance of the Class 2-A-4 Certificates.
(f) Notwithstanding any other provision of this Section 5.03,
no
Class Certificate Balance of a Class will be increased on any
Distribution Date
such that the Class Certificate Balance of a Class exceeds its
Initial Class
Certificate Balance less all distributions of principal previously
distributed
in respect of such Class on prior Distribution Dates (excluding in
the case of
any Class of Subordinate Certificates any principal otherwise
payable to such
Class of Subordinate Certificates but used to pay any Class PO
Deferred Amount).
(g) With respect to any Distribution Date, Realized Losses
allocated
pursuant to this Section 5.03 will be allocated to each
Uncertificated
Lower-Tier Interest as described in Section 5.02(a) and to each
Uncertificated
Middle-Tier Interest in an amount equal to the Realized Losses
allocated to such
Uncertificated Middle-Tier Interest's Corresponding Upper-Tier
Class, Classes or
Component.
Section
5.04 Statements to Certificateholders. (a) Prior to the
Distribution Date in each month, based upon the information
provided to the
Securities Administrator on the Master Servicer's Certificate
delivered to the
Securities Administrator pursuant to Section 4.01, the Securities
Administrator
shall determine the following information with respect to such
Distribution
Date:
(i) for each Loan Group, the amount allocable to principal,
separately
identifying the aggregate amount of any Principal Prepayments
and Liquidation
Proceeds included therein;
(ii) for each Loan Group, the amount allocable to interest, any
Class
Unpaid Interest Shortfall and Component Unpaid Interest
Shortfall
included
in such distribution and any remaining Class Unpaid Interest
Shortfall
and Component Unpaid Interest Shortfall after giving effect to
such
distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to
such
Holders if there were sufficient funds available therefor, the
amount
of the
shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates
and
the
Component Balance of each Component after giving effect to the
distribution of principal on such Distribution Date;
(v) for each Loan Group, the Pool Stated Principal Balance for
the
following
Distribution Date;
(vi) for each Loan Group, (A) the Senior Percentage, the Senior
Prepayment
Percentage, the Subordinate Percentage and the Subordinate
Prepayment
Percentage for such Distribution Date and (B) the Senior
Percentage, the Senior Prepayment Percentage, the Subordinate
Percentage
and the
Subordinate Prepayment Percentage for the following
Distribution
Date;
(vii) the amount of the Servicing Fee paid to or retained by
the
Servicer
with respect to each Loan Group and such Distribution Date;
(viii) the Pass-Through Rate for each such Class of
Certificates
with
respect to such Distribution Date;
(ix) for each Loan Group, the amount of Periodic Advances
included
in the
distribution on such Distribution Date and the aggregate amount
of
Periodic
Advances outstanding as of the close of business on such
Distribution Date;
(x) for each Loan Group, the number and aggregate principal
amounts
of Mortgage
Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or bankruptcy) (1) 1 to 30 days (2) 31 to 60 days (3)
61 to 90
days and
(4) 91 or more days, (B) in foreclosure, as of the close of
business
on the last day of the calendar month preceding such
Distribution
Date and
(C) in bankruptcy, as of the close of business on the last day
of
the
calendar month preceding such Distribution Date;
(xi) for each Loan Group, with respect to any Mortgage Loan
that
became an
REO Property during the preceding calendar month, the loan
number and
Stated Principal Balance of such Mortgage Loan as of the close
of
business on the Determination Date preceding such Distribution Date
and
the date
of acquisition thereof;
(xii) for each Loan Group, the total number and principal balance
of
any REO
Properties (and market value, if available) as of the close of
business
on the Determination Date preceding such Distribution Date;
(xiii) for each Loan Group, the aggregate amount of Realized
Losses
incurred
during the preceding calendar month and for each Group or any
Class PO
Deferred Amounts for such Distribution Date;
(xiv) the Notional Amount for each Class of Interest Only
Certificates and the notional amount for each interest only
Component for
such
Distribution Date;
(xv) for each Loan Group, the Reimbursement Amount;
(xvi) the Yield Maintenance Agreement Payments received from
the
Counterparty and the Yield Maintenance Amounts and the Yield
Maintenance
Amount
Shortfalls paid to the Class 1-A-1 and Class 2-A-1
Certificates;
and
(xvii) for each Loan Group, the amount of Recoveries, the Class
PO
Recovery
and the Non-PO Recovery.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master
Servicer's
Certificate, shall make available to each Holder of a Certificate,
each Rating
Agency and the Master Servicer, a statement setting forth the
information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i)
and
(ii) of Section 5.04(a), the amounts shall be expressed as a dollar
amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish to each Financial Market Service, in electronic
or such
other format and media mutually agreed upon by the Securities
Administrator, the
Financial Market Service and the Depositor, the information
contained in the
statement described in Section 5.04(a) for such Distribution
Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files
containing the same
information in an alternative format) available each month to
Certificateholders
and other parties to this Agreement via the Securities
Administrator's Internet
website. The Securities Administrator's Internet website shall
initially be
located at "www.ctslink.com." Assistance in using the website can
be obtained by
calling the Securities Administrator's customer service desk at
(301) 815-6600.
Parties that are unable to use the website are entitled to have a
paper copy
mailed to them via first class mail by calling the customer service
desk and
indicating such. The Securities Administrator shall have the right
to change the
way the monthly statements to Certificateholders are distributed in
order to
make such distribution more convenient and/or more accessible to
the above
parties and the Securities Administrator shall provide timely and
adequate
notification to all above parties regarding any such changes.
Within a reasonable period of time after the end of each
calendar
year, the Securities Administrator shall furnish to each Person who
at any time
during the calendar year was the Holder of a Certificate, if
requested in
writing by such Person, a statement containing the information set
forth in
clauses (i) and (ii) of Section 5.04(a), in each case aggregated
for such
calendar year or applicable portion thereof during which such
Person was a
Certificateholder. Such obligation of the Securities Administrator
shall be
deemed to have been satisfied to the extent that substantially
comparable
information shall be provided by the Securities Administrator
pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the Securities
Administrator is required
by this Agreement or the Code, Treasury Regulations or REMIC
Provisions to
deliver to the Holders of Certificates, and the Securities
Administrator shall
prepare and provide to the Certificateholders (by mail, telephone,
or
publication as may be permitted by applicable Treasury Regulations)
such other
reasonable information as the Securities Administrator deems
necessary or
appropriate or is required by the Code, Treasury Regulations, and
the REMIC
Provisions including, but not limited to, (i) information to be
reported to the
Holder of the Residual Certificate for quarterly notices on
Schedule Q (Form
1066) (which information shall be forwarded to the Holder of the
Residual
Certificate by the Securities Administrator), (ii) information to
be provided to
the Holders of Certificates with respect to amounts which should be
included as
interest and original issue discount in such Holders' gross income
and (iii)
information to be provided to all Holders of Certificates setting
forth the
percentage of each REMIC's assets, determined in accordance with
Treasury
Regulations using a convention, not inconsistent with Treasury
Regulations,
selected by the Securities Administrator in its absolute
discretion, that
constitute real estate assets under Section 856 of the Code, and
assets
described in Section 7701(a)(19)(C) of the Code; provided, however,
that in
setting forth the percentage of such assets of each REMIC created
hereunder,
nothing contained in this Agreement, including without limitation
Section 7.03
hereof, shall be interpreted to require the Securities
Administrator
periodically to appraise the fair market values of the assets of
the Trust
Estate or to indemnify the Trust Estate or any Certificateholders
from any
adverse federal, state or local tax consequences associated with a
change
subsequently required to be made in the Depositor's initial good
faith
determinations of such fair market values (if subsequent
determinations are
required pursuant to the REMIC Provisions) made from time to
time.
Section
5.05 Tax Returns and Reports to Certificateholders. (a) For
federal income tax purposes, each REMIC created hereunder shall
have a taxable
year ending on December 31st and shall maintain its books on the
accrual method
of accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, shall cause to be timely signed by the Trustee, and shall
file or
cause to be filed with the Internal Revenue Service and applicable
state or
local tax authorities income tax information returns for each
taxable year with
respect to each REMIC created hereunder containing such information
at the times
and in the manner as may be required by the Code, the Treasury
Regulations or
state or local tax laws, regulations, or rules, and shall furnish
or cause to be
furnished to each REMIC created hereunder and the
Certificateholders the
schedules, statements or information at such times and in such
manner as may be
required thereby. The Master Servicer shall provide on a timely
basis to the
Securities Administrator or its designee such information with
respect to the
assets of the Trust Estate as is in its possession and reasonably
required by
the Securities Administrator to enable it to perform its
obligations under this
Article V. Within 30 days of the Closing Date, the Securities
Administrator
shall obtain for each REMIC created hereunder a taxpayer
identification number
on Form SS-4 or as otherwise permitted by the Internal Revenue
Service, and
shall furnish or cause to be furnished to the Internal Revenue
Service, on Form
8811 or as otherwise required by the Code or the Treasury
Regulations, the name,
title, address and telephone number of the person that Holders of
the
Certificates may contact for tax information relating thereto,
together with
such additional information at the time or times and in the manner
required by
the Code or the Treasury Regulations. Such federal, state, or local
income tax
or information returns shall be signed by the Trustee, or such
other Person as
may be required to sign such returns by the Code, the Treasury
Regulations or
state or local tax laws, regulations, or rules.
(c) In the first federal income tax return of each REMIC
created
hereunder for its short taxable year ending December 31, 2005,
REMIC status
shall be elected for such taxable year and all succeeding taxable
years.
(d) The Securities Administrator will maintain or cause to be
maintained such records relating to each REMIC created hereunder,
including but
not limited to records relating to the income, expenses, assets and
liabilities
of the Trust Estate, and the initial fair market value and adjusted
basis of the
Trust Estate property and assets determined at such intervals as
may be required
by the Code or the Treasury Regulations, as may be necessary to
prepare the
foregoing returns, schedules, statements or information.
Section
5.06 Tax Matters Person. The Tax Matters Person shall have the
same duties with respect to the applicable REMIC as those of a "tax
matters
partner" under Subchapter C of Chapter 63 of Subtitle F of the
Code. The Holder
of the Class 1-A-R Certificate is hereby designated as the Tax
Matters Person
for the Upper-Tier REMIC, Middle-Tier REMIC and the Lower-Tier
REMIC. By its
acceptance of the Class 1-A-R Certificate, such Holder irrevocably
appoints the
Securities Administrator as its agent to perform all of the duties
of the Tax
Matters Person for the Upper-Tier REMIC, Middle-Tier REMIC and the
Lower-Tier
REMIC.
Section
5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator. The Securities Administrator shall afford
the Tax
Matters Person, upon reasonable notice during normal business
hours, access to
all records maintained by the Securities Administrator in respect
of its duties
hereunder and access to officers of the Securities Administrator
responsible for
performing such duties. Upon request, the Securities Administrator
shall furnish
the Tax Matters Person with its most recent report of condition
published
pursuant to law or to the requirements of its supervisory or
examining authority
publicly available. The Securities Administrator shall make
available to the Tax
Matters Person such books, documents or records relating to the
Securities
Administrator's services hereunder as the Tax Matters Person shall
reasonably
request. The Tax Matters Person shall not have any responsibility
or liability
for any action or failure to act by the Securities Administrator
and is not
obligated to supervise the performance of the Securities
Administrator under
this Agreement or otherwise.
Section
5.08 REMIC Related Covenants. For as long as any REMIC
created hereunder shall exist, the Trustee, the Securities
Administrator, the
Depositor and the Master Servicer shall act in accordance herewith
to assure
continuing treatment of each REMIC created hereunder as a REMIC and
avoid the
imposition of tax on any REMIC created hereunder. In
particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in any REMIC
created
hereunder within the meaning of Code Section 860D(a)(2) other than
the interests
represented by the Regular Certificates, the Residual Certificate,
the
Uncertificated Middle-Tier Interests and the Uncertificated
Lower-Tier
Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor
and
the Master Servicer shall not contribute to the Trust Estate and
the Trustee
shall not accept property unless substantially all of the property
held in each
REMIC constitutes either "qualified mortgages" or "permitted
investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and (ii)
no property
shall be contributed, or deemed contributed, to any REMIC created
hereunder
after the start-up day unless such contribution would not subject
the Trust
Estate to the 100% tax on contributions to a REMIC created
hereunder after the
start-up day of such REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee,
shall
not accept on behalf of any REMIC created hereunder any fee or
other
compensation for services and none of the Securities Administrator,
the Trustee
or the Master Servicer shall knowingly accept, on behalf of the
Trust Estate any
income from assets other than those permitted to be held by a
REMIC.
(d) Neither the Securities Administrator, on behalf of the
Trustee,
nor the Trustee shall sell or permit the sale of all or any portion
of the
Mortgage Loans (other than in accordance with Sections 2.02 or
2.04), unless
such sale is pursuant to a "qualified liquidation" of the
applicable REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with
Article X.
(e) The Securities Administrator shall maintain books with
respect
to the Trust and each REMIC created hereunder on a calendar year
taxable year
basis and on an accrual basis.
None of the Master Servicer, the Securities Administrator or
the
Trustee shall engage in a "prohibited transaction" (as defined in
Code Section
860F(a)(2)), except that, with the prior written consent of the
Master Servicer
and the Depositor, the Securities Administrator may engage in the
activities
otherwise prohibited by the foregoing paragraphs (b), (c) and (d);
provided that
the Master Servicer shall have delivered to the Securities
Administrator an
Opinion of Counsel to the effect that such transaction will not
result in the
imposition of a tax on any REMIC created hereunder and will not
disqualify any
such REMIC from treatment as a REMIC; and, provided further, that
the Master
Servicer shall have demonstrated to the satisfaction of the
Securities
Administrator that such action will not adversely affect the rights
of the
Holders of the Certificates and the Securities Administrator and
that such
action will not adversely impact the rating of the
Certificates.
Section
5.09 Determination of LIBOR.On each Rate Determination Date for
a
Class of LIBOR Certificates, the Securities Administrator shall
determine LIBOR
for the applicable Distribution Date on the basis of the British
Bankers'
Association ("BBA") "Interest Settlement Rate" for one-month
deposits in U.S.
Dollars as found on Telerate page 3750 as of 11:00 A.M. London time
on such Rate
Determination Date. As used herein, "Telerate page 3750" means the
display
designated as page 3750 on the Reuters Telerate Service.
If on any Rate
Determination Date for a Class of LIBOR Certificates,
the Securities Administrator is unable to determine LIBOR on the
basis of the
method set forth in the preceding paragraph, LIBOR for the
applicable
Distribution Date will be whichever is higher of (x) LIBOR as
determined on the
previous Rate Determination Date for such Class of LIBOR
Certificates or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be the rate
per annum
which the Securities Administrator 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 U.S. Dollar lending rates that
New York City
banks selected by the Securities Administrator are quoting, on the
relevant Rate
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
Securities
Administrator can determine no such arithmetic mean, the lowest
one-month U.S.
Dollar lending rate that the New York City banks selected by the
Securities
Administrator are quoting on such Rate Determination Date to
leading European
banks.
If on any Rate Determination Date for a Class of LIBOR
Certificates,
the Securities Administrator is required but is unable to determine
the Reserve
Interest Rate in the manner provided in the preceding paragraph,
LIBOR for the
applicable Distribution Date will be LIBOR as determined on the
previous Rate
Determination Date for such Class of LIBOR Certificates, or, in the
case of the
first Rate Determination Date for which the Securities
Administrator is required
to determine LIBOR, 4.36%.
The establishment of LIBOR by the Securities Administrator and
the
Securities Administrator's subsequent calculation of the rates of
interest
applicable to each of the LIBOR Certificates in the absence of
manifest error,
will be final and binding. After a Rate Determination Date, the
Securities
Administrator shall provide the Pass-Through Rates of the LIBOR
Certificates for
the related Distribution Date to Beneficial Owners or Holders of
LIBOR
Certificates who place a telephone call to the Securities
Administrator at (301)
815-6600 and make a request therefor.
Section
5.10 Master Servicer, Securities Administrator and Trustee
Indemnification.(a) In the event that any REMIC created hereunder
fails to
qualify as a REMIC, loses its status as a REMIC, or incurs federal,
state or
local taxes as a result of a prohibited transaction or prohibited
contribution
under the REMIC Provisions due solely to (i) the negligent
performance by the
Trustee of its duties and obligations set forth herein or (ii) any
state, local
or franchise taxes imposed upon the Trust Estate as a result of the
location of
the Trustee or any co-trustee, the Trustee shall indemnify the
Trust Estate
against any and all losses, claims, damages, liabilities or
expenses ("Losses")
resulting from such negligence, including, without limitation, any
reasonable
attorneys' fees imposed on or incurred as a result of a breach of
the Trustee's
or any co-trustee's covenants.
(b) In the event that any REMIC created hereunder fails to
qualify
as a REMIC, loses its status as a REMIC, or incurs federal, state
or local taxes
as a result of a prohibited transaction or prohibited contribution
under the
REMIC Provisions due solely to (i) the negligent performance by the
Master
Servicer of its duties and obligations set forth herein or (ii) any
state, local
or franchise taxes imposed upon the Trust Estate as a result of the
location of
the Master Servicer, the Master Servicer shall indemnify the Trust
Estate
against any and all Losses resulting from such negligence,
including, without
limitation, any reasonable attorneys' fees imposed on or incurred
as a result of
a breach of the Master Servicer's covenants.
(c) In the event that any REMIC created hereunder fails to
qualify
as a REMIC, loses its status as a REMIC, or incurs federal, state
or local taxes
as a result of a prohibited transaction or prohibited contribution
under the
REMIC Provisions due solely to (i) the negligent performance by the
Securities
Administrator of its duties and obligations set forth herein or
(ii) any state,
local or franchise taxes imposed upon the Trust Estate as a result
of the
location of the Securities Administrator, the Securities
Administrator shall
indemnify the Trust Estate against any and all Losses resulting
from such
negligence, including, without limitation, any reasonable
attorneys' fees
imposed on or incurred as a result of a breach of the Securities
Administrator's
covenants.
Section
5.11 Grantor Trust Administration.(a) The Securities
Administrator
shall treat the portions of the Trust Estate consisting of the
Reserve Funds and
the Yield Maintenance Agreements and rights with respect thereto as
a "grantor
trust" under the Code, and the provisions hereof shall be
interpreted
consistently with this treatment. The Securities Administrator
shall furnish or
cause to be furnished (i) to the Holders of the Class 1-A-1 and
Class 2-A-1
Certificates and (ii) to Banc of America Securities LLC, and shall
file or cause
to be filed with the Internal Revenue Service together with Form
1041 or such
other form as may be applicable, their allocable shares of income
and expenses
with respect to the property held by the Grantor Trust (Yield
Maintenance
Amounts and Yield Maintenance Amount Shortfalls, in the case of the
Class 1-A-1
and Class 2-A-1 Certificates, and Yield Maintenance Agreement
Payments, in the
case of Banc of America Securities LLC), at the time or times and
in the manner
required by the Code.
ARTICLE VI
THE CERTIFICATES
Section
6.01 The Certificates. The Classes of Senior Certificates and
the
Subordinate Certificates shall be substantially in the forms
attached hereto as
Exhibits 1-A-1, 1-A-2, 1-A-3, 1-A-4, 1-A-5, 1-A-6, 1-A-7, 1-A-8,
1-IO, 1-A-R,
2-A-1, 2-A-2, 2-A-3, 2-A-4, 2-A-5, 2-A-6, 2-A-7, 2-A-8, 3-A-1,
4-A-1, CB-IO,
X-PO, B-1, B-2, B-3, B-4, B-5, B-6 and C (reverse of all
Certificates) and
shall, on original issue, be executed by the Securities
Administrator and shall
be authenticated and delivered by the Securities Administrator to
or upon the
order of the Depositor upon receipt by the Custodian of the
documents specified
in Section 2.01. The Classes of Certificates shall be available to
investors in
minimum denominations of initial Certificate Balance (or initial
notional
amount) and integral multiples in excess thereof set forth in the
Preliminary
Statement. The Senior Certificates (other than the Class 1-A-R
Certificate) and
the Class B-1, Class B-2 and Class B-3 Certificates shall initially
be issued in
book-entry form through the Depository and delivered to the
Depository or,
pursuant to the Depository's instructions on behalf of the
Depository to, and
deposited with, the Certificate Custodian, and all other Classes of
Certificates
shall initially be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile
signature
on behalf of the Securities Administrator by an authorized officer
or signatory.
Certificates bearing the manual or facsimile signatures of
individuals who were,
at the time when such signatures were affixed, authorized to sign
on behalf of
the Securities Administrator shall bind the Securities
Administrator,
notwithstanding that such individuals or any of them have ceased to
be so
authorized prior to the execution and delivery of such Certificates
or did not
hold such offices or positions at the date of such Certificate. No
Certificate
shall be entitled to any benefit under this Agreement, or be valid
for any
purpose, unless such Certificate shall have been manually
authenticated by the
Securities Administrator substantially in the form provided for
herein, and such
authentication upon any Certificate shall be conclusive evidence,
and the only
evidence, that such Certificate has been duly authenticated and
delivered
hereunder. All Certificates shall be dated the date of their
authentication.
Section
6.02 Registration of Transfer and Exchange of Certificates. (a)
The Securities Administrator shall cause to be kept at an office or
agency in
the city in which the Corporate Trust Office of the Securities
Administrator is
located a Certificate Register in which, subject to such reasonable
regulations
as it may prescribe, the Securities Administrator shall provide for
the
registration of Certificates and of transfers and exchanges of
Certificates as
herein provided. The Securities Administrator shall initially serve
as
Certificate Registrar for the purpose of registering Certificates
and transfers
and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may
be
exchanged for other Certificates of authorized denominations of a
like Class,
tenor and aggregate Percentage Interest, upon surrender of the
Certificates to
be exchanged at any such office or agency. Whenever any
Certificates are so
surrendered for exchange, the Securities Administrator shall
execute and the
Securities Administrator shall authenticate and deliver the
Certificates which
the Certificateholder making the exchange is entitled to receive.
Every
Certificate presented or surrendered for transfer or exchange shall
(if so
required by the Securities Administrator or the Certificate
Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer
in form
satisfactory to the Securities Administrator and the Certificate
Registrar duly
executed by, the Holder thereof or its attorney duly authorized in
writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the
name of the
Depository or its nominee and at all times: (A) registration of the
Book-Entry
Certificates may not be transferred by the Securities Administrator
except to
another Depository; (B) the Depository shall maintain book-entry
records with
respect to the Certificate Owners and with respect to ownership and
transfers of
such Book-Entry Certificates; (C) ownership and transfers of
registration of the
Book-Entry Certificates on the books of the Depository shall be
governed by
applicable rules established by the Depository; (D) the Depository
may collect
its usual and customary fees, charges and expenses from its
Depository
Participants; (E) the Securities Administrator shall deal with the
Depository as
the representative of the Certificate Owners of the Book-Entry
Certificates for
purposes of exercising the rights of Holders under this Agreement,
and requests
and directions for and votes of the Depository shall not be deemed
to be
inconsistent if they are made with respect to different Certificate
Owners; and
(F) the Securities Administrator may rely and shall be fully
protected in
relying upon information furnished by the Depository with respect
to its
Depository Participants and furnished by the Depository
Participants with
respect to indirect participating firms and persons shown on the
books of such
indirect participating firms as direct or indirect Certificate
Owners.
(ii) All transfers by Certificate Owners of Book-Entry
Certificates
shall be
made in accordance with the procedures established by the
Depository
Participant or brokerage firm representing such Certificate
Owner.
Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage
firms for
which it
acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing
that the Depository is no longer willing or able to properly
discharge
its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified
successor,
the
Securities Administrator shall notify all Certificate Owners,
through
the
Depository, of the occurrence of such event and of the availability
of
definitive, fully-registered Certificates (the "Definitive
Certificates")
to such
Certificate Owners requesting the same. Upon surrender to the
Securities
Administrator of the related Class of Certificates by the
Depository
(or by the Certificate Custodian, if it holds such Class on
behalf of
the Depository), accompanied by the instructions from the
Depository
for registration, the Securities Administrator shall issue the
Definitive
Certificates. None of the Master Servicer, the Depositor, the
Securities
Administrator or the Trustee shall be liable for any delay in
delivery
of such instruction and may conclusively rely on, and shall be
protected
in relying on, such instructions. The Depositor shall provide
the
Securities Administrator with an adequate inventory of certificates
to
facilitate
the issuance and transfer of Definitive Certificates. Upon the
issuance
of Definitive Certificates, the Securities Administrator shall
recognize
the Holders of the Definitive Certificates as
Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless
such
transfer is exempt from the registration requirements of the 1933
Act and any
applicable state securities laws or is made in accordance with the
1933 Act and
such laws. In the event of any such transfer, (i) unless such
transfer is made
in reliance on Rule 144A under the 1933 Act, the Securities
Administrator or the
Depositor may require a written Opinion of Counsel (which may be
in-house
counsel) acceptable to and in form and substance reasonably
satisfactory to the
Securities Administrator and the Depositor that such transfer may
be made
pursuant to an exemption, describing the applicable exemption and
the basis
therefor, from the 1933 Act and such laws or is being made pursuant
to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense
of the
Securities Administrator or the Depositor and (ii) the Securities
Administrator
shall require a certificate from the Certificateholder desiring to
effect such
transfer substantially in the form attached hereto as Exhibit G-1
and a
certificate from such Certificateholder's prospective transferee
substantially
in the form attached hereto either as Exhibit G-2A or as Exhibit
G-2B, which
certificates shall not be an expense of the Securities
Administrator or the
Depositor; provided that the foregoing requirements under clauses
(i) and (ii)
shall not apply to a transfer of a Private Certificate between or
among the
Depositor, the Seller, their affiliates or both. The Depositor
shall provide to
any Holder of a Private Certificate and any prospective transferees
designated
by any such Holder, information regarding the related Certificates
and the
Mortgage Loans and such other information as shall be necessary to
satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer
of any such
certificate without registration thereof under the 1933 Act
pursuant to the
registration exemption provided by Rule 144A. The Holder of a
Private
Certificate desiring to effect such transfer shall, and does hereby
agree to,
indemnify the Securities Administrator and the Depositor against
any liability
that may result if the transfer is not so exempt or is not made in
accordance
with such federal and state laws.
(e) No transfer of an ERISA Restricted Certificate shall be
made
unless the transferee delivers to the Securities Administrator
either (i) a
representation letter in the form attached hereto as Exhibit H from
the
transferee of such Certificate, which representation letter shall
not be an
expense of the Depositor, the Trustee, the Securities Administrator
or the
Master Servicer, or (ii) in the case of any ERISA Restricted
Certificate
presented for registration in the name of an employee benefit plan
or
arrangement, including an individual retirement account, subject to
ERISA, the
Code, or any federal, state or local law ("Similar Law") which is
similar to
ERISA or the Code (collectively, a "Plan"), or a trustee or
custodian of any of
the foregoing, an Opinion of Counsel in form and substance
satisfactory to the
Securities Administrator to the effect that the purchase or holding
of such
ERISA Restricted Certificate by or on behalf of such Plan will not
constitute or
result in a non-exempt prohibited transaction within the meaning of
ERISA,
Section 4975 of the Code or Similar Law and will not subject the
Trustee, the
Depositor, the Securities Administrator or the Master Servicer to
any obligation
in addition to those undertaken in this Agreement, which Opinion of
Counsel
shall not be an expense of the Securities Administrator, the
Trustee or the
Master Servicer. Any transferee of an ERISA Restricted Certificate
that does not
comply with either clause (i) or (ii) of the preceding sentence
will be deemed
to have made one of the representations set forth in Exhibit H. For
purposes of
clause (i) of the second preceding sentence, such representation
shall be deemed
to have been made to the Certificate Registrar by the acceptance by
a
Certificate Owner of a Book-Entry Certificate of the beneficial
interest in any
such Class of ERISA-Restricted Certificates, unless the Certificate
Registrar
shall have received from the transferee an alternative
representation acceptable
in form and substance to the Depositor. Notwithstanding anything
else to the
contrary herein, any purported transfer of an ERISA Restricted
Certificate to or
on behalf of a Plan without the delivery to the Securities
Administrator of an
Opinion of Counsel satisfactory to the Securities Administrator as
described
above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate
Registrar
shall have any liability for transfers of Book-Entry Certificates
made through
the book-entry facilities of the Depository or between or among any
Depository
Participants or Certificate Owners, made in violation of
applicable
restrictions. The Securities Administrator may rely and shall be
fully protected
in relying upon information furnished by the Depository with
respect to its
Depository Participants and furnished by the Depository
Participants with
respect to indirect participating firms and Persons shown on the
books of such
indirect participating firms as direct or indirect Certificate
Owners.
To the extent permitted under applicable law (including, but
not
limited to, ERISA), the Securities Administrator shall be under no
liability to
any Person for any registration of transfer of any ERISA Restricted
Certificate
that is in fact not permitted by this Section 6.02 or for making
any payments
due on such Certificate to the Holder thereof or taking any other
action with
respect to such Holder under the provisions of this Agreement so
long as the
transfer was registered by the Securities Administrator in
accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in
a
Residual Certificate shall be deemed by the acceptance or
acquisition of such
Ownership Interest to have agreed to be bound by the following
provisions, and
the rights of each Person acquiring any Ownership Interest in a
Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a
Residual
Certificate shall be a Permitted Transferee and shall promptly
notify the
Securities Administrator of any change or impending change in
its status
as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a
Residual
Certificate unless such Ownership Interest is a pro rata
undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest
in a Residual Certificate, the Securities Administrator shall
require
delivery to it, in form and substance satisfactory to it, of an
affidavit
in the form attached hereto as Exhibit I from the proposed
transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee
under clause (iii) above, if a Responsible Officer of the
Securities
Administrator has actual knowledge that the proposed transferee
is not a
Permitted Transferee, no transfer of any Ownership Interest in
a
Residual
Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be
purchased
by or
transferred to any Person that is not a U.S. Person, unless (A)
such
Person
holds such Residual Certificate in connection with the conduct of
a
trade or
business within the United States and furnishes the transferor
and the
Securities Administrator with an effective Internal Revenue
Service Form W-8ECI
(or successor thereto) or (B) the transferee delivers
to both
the transferor and the Securities Administrator an Opinion of
Counsel
from a nationally-recognized tax counsel to the effect that
such
transfer
is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a
Residual
Certificate will not be disregarded for federal income tax
purposes.
(vi) Any attempted or purported transfer of any Ownership
Interest
in a
Residual Certificate in violation of the provisions of this
Section
6.02 shall
be absolutely null and void and shall vest no rights in the
purported
transferee. If any purported transferee shall, in violation of
the
provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate
that is a
Permitted
Transferee shall, upon discovery that the registration of
transfer
of such Residual Certificate was not in fact permitted by this
Section
6.02, be restored to all rights as Holder thereof retroactive
to
the date
of registration of transfer of such Residual Certificate. The
Securities
Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact
not
permitted
by this Section 6.02 or for making any distributions due on
such
Residual
Certificate to the Holder thereof or taking any other action
with
respect to
such Holder under the provisions of the Agreement so long as
the
transfer was registered in accordance with this Section 6.02.
The
Securities
Administrator shall be entitled to recover from any Holder of a
Residual
Certificate that was in fact not a Permitted Transferee at the
time such
distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the
Securities
Administrator shall be distributed and delivered by the
Securities
Administrator to the prior Holder of such Residual Certificate that
is a
Permitted
Transferee.
(vii) If any Person other than a Permitted Transferee acquires
any
Ownership
Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities
Administrator,
based on
information provided to the Securities Administrator by the
Master
Servicer, will provide to the Internal Revenue Service, and to
the
Persons
specified in Section 860E(e)(3) and (6) of the Code,
information
needed to
compute the tax imposed under Section 860E(e) of the Code on
transfers
of residual interests to disqualified organizations. The
expenses of the
Securities Administrator under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired
by a Plan or any Person acting on behalf of a Plan.
(g) No service charge shall be imposed for any transfer or
exchange
of Certificates of any Class, but the Securities Administrator may
require
payment of a sum sufficient to cover any tax or governmental charge
that may be
imposed in connection with any transfer or exchange of
Certificates.
(h) All Certificates surrendered for transfer and exchange shall
be
destroyed by the Certificate Registrar.
Section
6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any
mutilated Certificate is surrendered to the Certificate Registrar
or the
Certificate Registrar receives evidence to its satisfaction of the
destruction,
loss or theft of any Certificate, and (b) there is delivered to the
Securities
Administrator, the Trustee, the Depositor and the Certificate
Registrar such
security or indemnity reasonably satisfactory to each, to save each
of them
harmless, then, in the absence of actual notice to the Securities
Administrator
or the Certificate Registrar that such Certificate has been
acquired by a bona
fide purchaser, the Securities Administrator shall authenticate and
deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen
Certificate, a new Certificate of like tenor, Class and Percentage
Interest but
bearing a number not contemporaneously outstanding. Upon the
issuance of any new
Certificate under this Section, the Securities Administrator may
require the
payment of a sum sufficient to cover any tax or other governmental
charge that
may be imposed in relation thereto and any other expenses
(including the fees
and expenses of the Securities Administrator and the Certificate
Registrar)
connected therewith. Any duplicate Certificate issued pursuant to
this Section
shall constitute complete and indefeasible evidence of ownership in
the Trust,
as if originally issued, whether or not the lost, stolen or
destroyed
Certificate shall be found at any time.
Section
6.04 Persons Deemed Owners.Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master
Servicer,
the Trustee, the Securities Administrator, the Certificate
Registrar and any
agent of the Depositor, the Master Servicer, the Trustee, the
Securities
Administrator or the Certificate Registrar may treat the Person in
whose name
any Certificate is registered as the owner of such Certificate for
the purpose
of receiving distributions pursuant to Section 5.01 and for all
other purposes
whatsoever, and none of the Depositor, the Master Servicer, the
Trustee, the
Securities Administrator, the Certificate Registrar or any agent of
the
Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the
Certificate Registrar shall be affected by notice to the
contrary.
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section
7.01 Respective Liabilities of the Depositor and the Master
Servicer.The Depositor and the Master Servicer shall each be liable
in
accordance herewith only to the extent of the obligations
specifically and
respectively imposed upon and undertaken by the Depositor and the
Master
Servicer herein. By way of illustration and not limitation, the
Depositor is not
liable for the master servicing and administration of the Mortgage
Loans, nor is
it obligated by Section 8.01 to assume any obligations of the
Master Servicer or
to appoint a designee to assume such obligations, nor is it liable
for any other
obligation hereunder that it may, but is not obligated to, assume
unless it
elects to assume such obligation in accordance herewith.
Section
7.02 Merger or Consolidation of the Depositor or the Master
Servicer.The Depositor and the Master Servicer will each keep in
full effect its
existence, rights and franchises as a separate entity under the
laws governing
its organization, and will each obtain and preserve its
qualification to do
business as a foreign corporation in each jurisdiction in which
such
qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement, the Certificates or any of the
Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may
be
merged or consolidated, or any corporation resulting from any
merger or
consolidation to which the Depositor or the Master Servicer shall
be a party, or
any Person succeeding to the business of the Depositor or the
Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as
the case may
be, hereunder, without the execution or filing of any paper or any
further act
on the part of any of the parties hereto, anything herein to the
contrary
notwithstanding; provided, however, that the successor or surviving
Person to
the Master Servicer shall be qualified to service mortgage loans on
behalf of
Fannie Mae or Freddie Mac.
Section
7.03 Limitation on Liability of the Depositor, the Master
Servicer
and Others.None of the Depositor, the Master Servicer or any of the
directors,
officers, employees or agents of the Depositor or of the Master
Servicer shall
be under any liability to the Trust Estate or the
Certificateholders for any
action taken or for refraining from the taking of any action in
good faith
pursuant to this Agreement, or for errors in judgment; provided,
however, that
this provision shall not protect the Depositor, the Master Servicer
or any such
Person against any breach of warranties or representations made
herein or any
liability which would otherwise be imposed by reason of willful
misfeasance, bad
faith or gross negligence in the performance of duties or by reason
of reckless
disregard of obligations and duties hereunder. The Depositor, the
Master
Servicer and any director, officer, employee or agent of the
Depositor or the
Master Servicer may rely in good faith on any document of any kind
prima facie
properly executed and submitted by any Person respecting any
matters arising
hereunder. The Depositor, the Master Servicer and any director,
officer,
employee or agent of the Depositor or the Master Servicer shall be
indemnified
by the Trust Estate and held harmless against any loss, liability
or expense
incurred in connection with any legal action relating to this
Agreement or the
Certificates, other than any loss, liability or expense related to
any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense
shall be otherwise reimbursable pursuant to this Agreement) and any
loss,
liability or expense incurred by reason of willful misfeasance, bad
faith or
gross negligence in the performance of duties hereunder or by
reason of reckless
disregard of obligations and duties hereunder. Neither of the
Depositor nor the
Master Servicer shall be under any obligation to appear in,
prosecute or defend
any legal action which is not incidental to its respective duties
under this
Agreement and which in its opinion may involve it in any expense or
liability;
provided, however, that the Depositor or the Master Servicer may in
its
discretion undertake any such action which it may deem necessary or
desirable in
respect to this Agreement and the rights and duties of the parties
hereto and
the interests of the Certificateholders hereunder. In such event,
the legal
expenses and costs of such action and any liability resulting
therefrom shall be
expenses, costs and liabilities of the Trust Estate (except any
expenses, costs
or liabilities incurred as a result of any breach of
representations or
warranties of the related party or by reason of willful
misfeasance, bad faith
or gross negligence in the performance of duties of such party
hereunder or by
reason of reckless disregard of obligations and duties of such
party hereunder),
and the Depositor and the Master Servicer shall each be entitled to
be
reimbursed therefor out of amounts attributable to the Mortgage
Loans on deposit
in the Master Servicer Custodial Account as provided by Section
3.11.
Section
7.04 Depositor and Master Servicer Not to Resign.Subject to the
provisions of Section 7.02, neither the Depositor nor the Master
Servicer shall
resign from its respective obligations and duties hereby imposed on
it except
upon determination that its duties hereunder are no longer
permissible under
applicable law. Any such determination permitting the resignation
of the
Depositor or the Master Servicer shall be evidenced by an Opinion
of Counsel to
such effect delivered to the Securities Administrator. No such
resignation by
the Master Servicer shall become effective until the Securities
Administrator or
a successor Master Servicer shall have assumed such Master
Servicer's
responsibilities and obligations in accordance with Section 8.05
hereof.
ARTICLE VIII
DEFAULT
Section
8.01 Events of Default.If any one of the following events
("Events
of Default") shall occur and be continuing:
(a) any failure by the Master Servicer to remit amounts to the
Securities Administrator for deposit into the Certificate Account
in the amount
and manner provided herein so as to enable the Securities
Administrator to
distribute to Holders of Certificates any payment required to be
made under the
terms of such Certificates and this Agreement which continues
unremedied by 3:00
P.M. New York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe
or
perform in any material respect any other covenants or agreements
of the Master
Servicer set forth in the Certificates or in this Agreement, which
covenants and
agreements continue unremedied for a period of 30 days after the
date on which
written notice of such failure, requiring the same to be remedied,
shall have
been given to the Master Servicer by the Securities Administrator,
the Trustee
or the Depositor, or to the Master Servicer, the Depositor, the
Securities
Administrator and the Trustee by the Holders of Certificates
evidencing Voting
Rights aggregating not less than 25% of all Certificates affected
thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of
a conservator, receiver or liquidator in any insolvency,
readjustment of debt,
marshalling of assets and liabilities or similar proceedings
against the Master
Servicer, or for the winding up or liquidation of the Master
Servicer's affairs,
and the continuance of any such decree or order unstayed and in
effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to
the Master Servicer or of or relating to substantially all of its
property; or
the Master Servicer shall admit in writing its inability to pay its
debts
generally as they become due, file a petition to take advantage of
any
applicable insolvency or reorganization statute, make an assignment
for the
benefit of its creditors, or voluntarily suspend payment of its
obligations;
then, and in each and every such case, so long as an Event of
Default is
actually known by the Trustee or the Depositor and shall not have
been remedied
by the Master Servicer, either the Trustee or the Depositor may,
and at the
direction of the Holders of Certificates evidencing Voting Rights
aggregating
not less than 51% of all Certificates affected thereby shall, by
notice then
given in writing to the Master Servicer (and to the Trustee, if
given by the
Depositor, and to the Depositor, if given by the Trustee),
terminate all of the
rights and obligations of the Master Servicer under this Agreement.
On or after
the receipt by the Master Servicer of such written notice and
subject to Section
8.05, all authority and power of the Master Servicer under this
Agreement,
whether with respect to the Certificates or the Mortgage Loans or
otherwise,
shall pass to and be vested in the Trustee pursuant to and under
this Section
8.01 and Section 8.05(a), unless and until such time as the Trustee
shall
appoint a successor Master Servicer pursuant to Section 8.05, and,
without
limitation, the Trustee is hereby authorized and empowered to
execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any
and all documents and other instruments, and to do or accomplish
all other acts
or things necessary or appropriate to effect the purposes of such
notice of
termination, whether to complete the transfer and endorsement of
the applicable
Mortgage Loans and related documents, or otherwise, including,
without
limitation, the recordation of the assignments of the applicable
Mortgage Loans
to it. The Master Servicer agrees to cooperate with the Trustee in
effecting the
termination of the responsibilities and rights of the Master
Servicer hereunder,
including, without limitation, the transfer to the Trustee for
the
administration by it of all cash amounts that have been deposited
by the Master
Servicer in the Master Servicer Custodial Account or thereafter
received by the
Master Servicer with respect to the Mortgage Loans. Upon obtaining
notice or
knowledge of the occurrence of any Event of Default, the Person
obtaining such
notice or knowledge shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the
Certificate
Register and to each Rating Agency. All costs and expenses
(including attorneys'
fees) incurred in connection with transferring the master servicing
data and
information to the successor Master Servicer and amending this
Agreement to
reflect such succession as Master Servicer pursuant to this Section
8.01 shall
be paid by the predecessor Master Servicer. Notwithstanding the
termination of
the Master Servicer pursuant hereto, the Master Servicer shall
remain liable for
any causes of action arising out of any Event of Default occurring
prior to such
termination, subject to the terms and conditions of this
Agreement.
Section
8.02 Remedies of Trustee.During the continuance of any Event of
Default, so long as such Event of Default shall not have been
remedied, the
Trustee, in addition to the rights specified in Section 8.01, shall
have the
right, in its own name as trustee of an express trust, to take all
actions now
or hereafter existing at law, in equity or by statute to enforce
its rights and
remedies and to protect the interests, and enforce the rights and
remedies, of
the Certificateholders (including the institution and prosecution
of all
judicial, administrative and other proceedings and the filing of
proofs of claim
and debt in connection therewith). Except as otherwise expressly
provided in
this Agreement, no remedy provided for by this Agreement shall be
exclusive of
any other remedy, and each and every remedy shall be cumulative and
in addition
to any other remedy and no delay or omission to exercise any right
or remedy
shall impair any such right or remedy or shall be deemed to be a
waiver of any
Event of Default.
Section
8.03 Directions by Certificateholders and Duties of Trustee
During
Event of Default.During the continuance of any Event of Default,
Holders of
Certificates evidencing Voting Rights aggregating not less than 25%
(or such
other percentage as may be required herein) of each Class of
Certificates
affected thereby may direct the time, method and place of
conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or
power conferred upon the Trustee under this Agreement; provided,
however, that
the Trustee shall be under no obligation to pursue any such remedy,
or to
exercise any of the trusts or powers vested in it by this Agreement
(including,
without limitation, (a) the conducting or defending of any
administrative action
or litigation hereunder or in relation hereto, and (b) the
terminating of the
Master Servicer or any successor Master Servicer from its rights
and duties as
servicer hereunder) at the request, order or direction of any of
the
Certificateholders, unless such Certificateholders shall have
offered to the
Trustee reasonable security or indemnity satisfactory to it against
the costs,
expenses and liabilities which may be incurred therein or thereby
and, provided
further, that, subject to the provisions of Section 9.01, the
Trustee shall have
the right to decline to follow any such direction if the Trustee,
based upon an
Opinion of Counsel, determines that the action or proceeding so
directed may not
lawfully be taken or if the Trustee in good faith determines that
the action or
proceeding so directed would subject the Trustee to a risk of
personal liability
or be unjustly prejudicial to the non-assenting
Certificateholders.
Section
8.04 Action upon Certain Failures of the Master Servicer and
upon
Event of Default.In the event that a Responsible Officer of the
Trustee shall
have actual knowledge of any failure of the Master Servicer
specified in Section
8.01(a) or (b) which would become an Event of Default upon such
Master
Servicer's failure to remedy the same after notice, the Trustee
shall give
notice thereof to the Master Servicer. If a Responsible Officer of
the Trustee
shall have knowledge of an Event of Default, the Trustee shall give
prompt
written notice thereof to the Certificateholders in accordance with
Section
8.01.
Section
8.05 Trustee to Act; Appointment of Successor.(a) Within 90
days
of the time the Master Servicer (and the Trustee if such notice of
termination
is delivered by the Depositor) receives a notice of termination
pursuant to
Section 8.01, the Trustee (or other named successor) shall be the
successor in
all respects to the Master Servicer in its capacity as master
servicer under
this Agreement and the transactions set forth or provided for
herein and shall
be subject to all the responsibilities, duties and liabilities
relating thereto
placed on the Master Servicer by the terms and provisions hereof
and thereof, as
applicable, or shall appoint a successor pursuant to Section
3.07.
Notwithstanding the foregoing, (i) the parties hereto agree that
the Trustee, in
its capacity as successor Master Servicer, immediately will assume
all of the
obligations of the Master Servicer to make advances (including,
without
limitation, Advances pursuant to Section 3.21) under this
Agreement, (ii) the
Trustee, in its capacity as successor Master Servicer, shall not be
responsible
for the lack of information and/or documents that it cannot obtain
through
reasonable efforts and (iii) under no circumstances shall any
provision of this
Agreement be construed to require the Trustee, acting in its
capacity as
successor to the Master Servicer in its obligation to make advances
(including
Advances pursuant to Section 3.21) to advance, expend or risk its
own funds or
otherwise incur any financial liability in the performance of its
duties
hereunder if it shall have reasonable grounds for believing that
such funds are
non-recoverable. Subject to Section 8.05(b), as compensation
therefor, the
Trustee shall be entitled to such compensation as the terminated
Master Servicer
would have been entitled to hereunder if no such notice of
termination had been
given, except for those amounts due to the Master Servicer as
reimbursement for
Advances previously made or amounts previously expended and are
otherwise
reimbursable hereunder. Notwithstanding the above, the Trustee may,
if it shall
be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or
petition a court of competent jurisdiction to appoint, any
established housing
and home finance institution having a net worth of not less than
$10,000,000 as
the successor to the terminated Master Servicer hereunder in the
assumption of
all or any part of the responsibilities, duties or liabilities of
the Master
Servicer hereunder; provided, however, that any such institution
appointed as a
successor Master Servicer shall not, as evidenced in writing by
each Rating
Agency, adversely affect the then current rating of any Class of
Certificates
immediately prior to the termination of the terminated Master
Servicer. The
appointment of a successor Master Servicer shall not affect any
liability of the
predecessor Master Servicer which may have arisen under this
Agreement prior to
its termination as Master Servicer, nor shall any successor
