================================================================================
BANC OF AMERICA FUNDING CORPORATION,
as Depositor,
WELLS FARGO BANK, N.A.,
as Securities Administrator,
CITIMORTGAGE, INC.,
as Master Servicer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated September 28, 2006
----------
Mortgage Pass-Through Certificates
Series 2006-5
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01
Defined Terms...............................................
4
Section 1.02
Interest Calculations.......................................
45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans................................
45
Section 2.02
Acceptance by the Trustee or Custodian of the Mortgage
Loans....................................................
50
Section 2.03
Representations, Warranties and Covenants of the Master
Servicer.................................................
54
Section 2.04
Representations and Warranties of the Depositor as to the
Mortgage Loans...........................................
56
Section 2.05
Designation of Interests in the REMICs......................
57
Section 2.06
Designation of Start-up Day.................................
57
Section 2.07
REMIC Certificate Maturity Date.............................
57
Section 2.08
Execution and Delivery of Certificates......................
57
Section 2.09
Establishment of the Trust..................................
57
Section 2.10
Purpose and Powers of the Trust.............................
58
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01
Master Servicing of the Mortgage Loans......................
58
Section 3.02
Monitoring of Servicers.....................................
59
Section 3.03
Fidelity Bond; Errors and Omissions Insurance...............
61
Section 3.04
Access to Certain Documentation.............................
61
Section 3.05
Maintenance of Primary Mortgage Insurance Policy; Claims....
61
Section 3.06
Rights of the
Depositor,
the
Securities
Administrator
and the
Trustee
in Respect of the Master Servicer......
62
Section 3.07
Trustee to Act as Master Servicer...........................
62
Section 3.08
Servicer Custodial Accounts and Escrow Accounts.............
63
Section 3.09
Collection of Mortgage Loan Payments;
Master Servicer
Custodial Account; Certificate
Account; Reserved Funds;
and Yield Maintenance Agreements.........................
63
Section 3.10
Access to Certain Documentation and Information Regarding
the Mortgage Loans.......................................
67
Section 3.11
Permitted Withdrawals from the Certificate Account and the
Master Servicer Custodial Account........................
67
Section 3.12
Maintenance of Hazard Insurance and Other Insurance.........
69
-i-
Section 3.13
Presentment of Claims and Collection of Proceeds............
69
Section 3.14
Enforcement of Due-On-Sale Clauses; Assumption Agreements...
69
Section 3.15
Realization Upon Defaulted Mortgage Loans; REO Property.....
69
Section 3.16
Trustee to Cooperate; Release of Mortgage Files.............
71
Section 3.17
Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee......................
72
Section 3.18
Master Servicer Compensation................................
73
Section 3.19
Advances ...................................................
73
Section 3.20
Annual Statement as to Compliance...........................
73
Section 3.21
Assessments of Compliance and Attestation Reports...........
74
Section 3.22
Reports to the Commission...................................
76
Section 3.23
Maintenance of the Rounding Account; Collections
Thereunder...............................................
83
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01
Master Servicer's Certificate...............................
84
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; REMIC ADMINISTRATION
Section 5.01
Distributions...............................................
84
Section 5.02
Priorities of Distributions.................................
85
Section 5.03
Allocation of Losses........................................
95
Section 5.04
Statements to Certificateholders............................
99
Section 5.05
Tax Returns and Reports to Certificateholders...............
103
Section 5.06
Tax Matters Person..........................................
104
Section 5.07
Rights of the Tax Matters Person in Respect of the
Securities Administrator.................................
104
Section 5.08
REMIC Related Covenants.....................................
104
Section 5.09
Determination of LIBOR......................................
105
Section 5.10
Master Servicer, Securities Administrator and Trustee
Indemnification..........................................
106
Section 5.11
Principal Distributions on the Special Retail
Certificates.............................................
107
ARTICLE VI
THE CERTIFICATES
Section 6.01
The Certificates............................................
111
Section 6.02
Registration of Transfer and Exchange of Certificates.......
111
Section 6.03
Mutilated, Destroyed, Lost or Stolen Certificates...........
116
Section 6.04
Persons Deemed Owners.......................................
116
-ii-
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01
Respective Liabilities of the Depositor and the Master
Servicer.................................................
116
Section 7.02
Merger or Consolidation of the Depositor or the Master
Servicer.................................................
116
Section 7.03
Limitation on Liability of the Depositor, the Master
Servicer and Others......................................
117
Section 7.04
Depositor and Master Servicer Not to Resign.................
118
ARTICLE VIII
DEFAULT
Section 8.01
Events of Default...........................................
118
Section 8.02
Remedies of Trustee.........................................
120
Section 8.03
Directions by Certificateholders and Duties of Trustee
During Event of Default..................................
120
Section 8.04
Action upon Certain Failures of the Master Servicer and upon
Event of Default.........................................
121
Section 8.05
Trustee to Act; Appointment of Successor....................
121
Section 8.06
Notification to Certificateholders..........................
123
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01
Duties of Trustee and Securities Administrator..............
124
Section 9.02
Certain Matters Affecting the Trustee and the Securities
Administrator............................................
126
Section 9.03
Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans...........................
127
Section 9.04
Trustee and Securities Administrator May Own Certificates...
128
Section 9.05
Eligibility Requirements for Trustee and the Securities
Administrator............................................
128
Section 9.06
Resignation and Removal of Trustee and the Securities
Administrator............................................
129
Section 9.07
Successor Trustee or Securities Administrator...............
130
Section 9.08
Merger or Consolidation of Trustee or Securities
Administrator............................................
131
Section 9.09
Appointment of Co-Trustee or Separate Trustee...............
131
Section 9.10
Authenticating Agents.......................................
132
Section 9.11
Securities Administrator's Fees and Expenses and Trustee's
Fees and Expenses........................................
133
Section 9.12
Appointment of Custodian....................................
134
Section 9.13
Paying Agents...............................................
134
Section 9.14
Limitation of Liability.....................................
135
Section 9.15
Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates.......................
135
Section 9.16
Suits for Enforcement.......................................
136
Section 9.17
Waiver of Bond Requirement..................................
136
Section 9.18
Waiver of Inventory, Accounting and Appraisal Requirement...
136
-iii-
ARTICLE X
TERMINATION
Section 10.01
Termination upon Purchase or Liquidation of All Mortgage
Loans....................................................
136
Section 10.02
Additional Termination Requirements.........................
138
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment ..................................................
139
Section 11.02
Recordation of Agreement; Counterparts .....................
140
Section 11.03
Limitation on Rights of Certificateholders .................
141
Section 11.04
Governing Law ..............................................
142
Section 11.05
Notices ....................................................
142
Section 11.06
Severability of Provisions .................................
142
Section 11.07
Certificates Nonassessable and Fully Paid ..................
143
Section 11.08
Access to List of Certificateholders .......................
143
Section 11.09
Recharacterization .........................................
143
Section 11.10
Regulation AB Compliance; Intent of the Parties;
Reasonableness ..........................................
144
-iv-
EXHIBITS
Exhibit A-1A1
Form of Face of Class 1-A-1 Certificate
Exhibit A-1A2
Form of Face of Class 1-A-2 Certificate
Exhibit A-1A3
Form of Face of Class 1-A-3 Certificate
Exhibit A-1A4
Form of Face of Class 1-A-4 Certificate
Exhibit A-1A5
Form of Face of Class 1-A-5 Certificate
Exhibit A-1A6
Form of Face of Class 1-A-6 Certificate
Exhibit A-1A7
Form of Face of Class 1-A-7 Certificate
Exhibit A-1A8
Form of Face of Class 1-A-8 Certificate
Exhibit A-1A9
Form of Face of Class 1-A-9 Certificate
Exhibit A-1A10
Form of Face of Class 1-A-10 Certificate
Exhibit A-1A11
Form of Face of Class 1-A-11 Certificate
Exhibit A-1A12
Form of Face of Class 1-A-12 Certificate
Exhibit A-1A13
Form of Face of Class 1-A-13 Certificate
Exhibit A-1A14
Form of Face of Class 1-A-14 Certificate
Exhibit A-2AR
Form of Face of Class 2-A-R Certificate
Exhibit A-2A1
Form of Face of Class 2-A-1 Certificate
Exhibit A-2A2
Form of Face of Class 2-A-2 Certificate
Exhibit A-2A3
Form of Face of Class 2-A-3 Certificate
Exhibit A-2A4
Form of Face of Class 2-A-4 Certificate
Exhibit A-2A5
Form of Face of Class 2-A-5 Certificate
Exhibit A-2A6
Form of Face of Class 2-A-6 Certificate
Exhibit A-2A7
Form of Face of Class 2-A-7 Certificate
Exhibit A-2A8
Form of Face of Class 2-A-8 Certificate
Exhibit A-2A9
Form of Face of Class 2-A-9 Certificate
Exhibit A-2A10
Form of Face of Class 2-A-10 Certificate
Exhibit A-2A11
Form of Face of Class 2-A-11 Certificate
Exhibit A-2A12
Form of Face of Class 2-A-12 Certificate
Exhibit A-2A13
Form of Face of Class 2-A-13 Certificate
Exhibit A-3A1
Form of Face of Class 3-A-1 Certificate
Exhibit A-3A2
Form of Face of Class 3-A-2 Certificate
Exhibit A-3A3
Form of Face of Class 3-A-3 Certificate
Exhibit A-3A4
Form of Face of Class 3-A-4 Certificate
Exhibit A-4A1
Form of Face of Class 4-A-1 Certificate
Exhibit A-4A2
Form of Face of Class 4-A-2 Certificate
Exhibit A-4A3
Form of Face of Class 4-A-3 Certificate
Exhibit A-4A4
Form of Face of Class 4-A-4 Certificate
Exhibit A-4A5
Form of Face of Class 4-A-5 Certificate
Exhibit A-4A6
Form of Face of Class 4-A-6 Certificate
Exhibit A-4A7
Form of Face of Class 4-A-7 Certificate
Exhibit A-4A8
Form of Face of Class 4-A-8 Certificate
Exhibit A-30IO
Form of Face of Class 30-IO Certificate
Exhibit A-30PO
Form of Face of Class 30-PO Certificate
Exhibit B-B1
Form of Face of Class B-1 Certificate
Exhibit B-B2
Form of Face of Class B-2 Certificate
Exhibit B-B3
Form of Face of Class B-3 Certificate
-v-
Exhibit B-B4
Form of Face of Class B-4 Certificate
Exhibit B-B5
Form of Face of Class B-5 Certificate
Exhibit B-B6
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
Exhibit L
Form of Final Certification
Exhibit M
Form of Sarbanes-Oxley Certification
Exhibit N
Form of Back-up Certification
Exhibit O
Planned Balance Schedules
Exhibit P
Relevant Servicing Criteria
Exhibit Q
Additional Form 10-D Disclosure
Exhibit R
Additional Form 10-K Disclosure
Exhibit S
Form 8-K Disclosure Information
Exhibit T
Additional Disclosure Notification
Exhibit U-1
Class 1-A-1 Yield Maintenance Agreement
Exhibit U-2
Class 1-A-7 Yield Maintenance Agreement
Exhibit U-3
Class 1-A-13 Yield Maintenance Agreement
-vi-
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated September 28, 2006, 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 securities administrator (together with its
permitted
successors and assigns, the "Securities Administrator"),
CITIMORTGAGE, INC., as
master servicer (together with its permitted successors and
assigns, the "Master
Servicer") and U.S. BANK NATIONAL ASSOCIATION, as trustee (together
with its
permitted successors and assigns, the "Trustee").
WITNESSETH THAT:
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. As provided herein, the
Securities
Administrator shall make elections to treat the Trust Estate
(exclusive of the
Yield Maintenance Agreements, the Reserve Funds and the Rounding
Account) as
three real estate mortgage investment conduits (the "Upper-Tier
REMIC," the
"Intermediate Lower-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
Intermediate Lower-Tier
REMIC. The Uncertificated Intermediate Lower-Tier Interests shall
constitute the
"regular interests" and the Class ILR Interest shall be the
"residual interest"
in the Intermediate Lower-Tier REMIC. The Uncertificated
Intermediate Lower-Tier
Interests shall constitute the assets of the Upper-Tier REMIC. The
Senior
Certificates (other than the Class 1-A-1, Class 1-A-7, Class
1-A-13, Class
30-IO, Class 30-PO and the Class 2-A-R Certificates), the Class
1-A-1 Interest,
the Class 1-A-7 Interest, the Class 1-A-13 Interest, the Components
and the
Class B Certificates are referred to collectively as the
"Upper-Tier Regular
Interests" 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 2-A-R Certificate shall represent beneficial ownership of the
Class LR
Interest, the Class ILR Interest and the Class UR Interest. 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:
INTEGRAL
INITIAL CLASS
PASS-
MULTIPLES IN
CERTIFICATE BALANCE
THROUGH
MINIMUM
EXCESS OF
CLASSES
OR NOTIONAL AMOUNT
RATE
DENOMINATION
MINIMUM
------------
-------------------
-------
------------
------------
Class 1-A-1
$ 52,278,000
(1)
$
1,000
N/A
Class 1-A-2
$ 52,278,000
(2)
$1,000,000
$
1
Class 1-A-3
$
985,000
6.00%
$
1,000
$
1
Class 1-A-4
$ 17,348,000
6.00%
$
1,000
$
1
Class 1-A-5
$
1,928,000
6.00%
$
1,000
$
1
Class 1-A-6
$ 20,811,000
6.00%
$
1,000
$
1
Class 1-A-7
$ 15,700,000
(3)
$
1,000
$
1
Class 1-A-8
$ 15,700,000
(4)
$1,000,000
$
1
Class 1-A-9
$
3,175,000
6.00%
$
1,000
$
1
Class 1-A-10
$ 53,506,000
6.00%
$
1,000
$
1
Class 1-A-11
$ 13,423,000
6.00%
$
1,000
$
1
Class 1-A-12
$
267,000
6.00%
$
1,000
$
1
Class 1-A-13
$
5,000,000
(5)
$
1,000
$
1
Class 1-A-14
$
5,000,000
(6)
$1,000,000
$
1
Class 2-A-R
$
100
6.00%
$
100
N/A
Class 2-A-1
$ 15,386,000
6.00%
$
1,000
$
1
Class 2-A-2
$
1,480,000
6.00%
$
1,000
$
1
Class 2-A-3
$
1,872,000
6.00%
$
1,000
$
1
Class 2-A-4
$
2,358,000
6.00%
$
1,000
$
1
Class 2-A-5
$
4,971,000
6.00%
$
1,000
$
1
Class 2-A-6
$ 26,921,000
6.00%
$
1,000
$
1
Class 2-A-7
$
884,000
6.00%
$
1,000
$
1
Class 2-A-8
$
370,000
6.00%
$
1,000
$
1
Class 2-A-9
$
3,563,000
6.00%
$
1,000
$1,000
Class 2-A-10
$ 13,550,000
5.75%
$
1,000
$
1
Class 2-A-11
$ 18,027,000
6.00%
$
1,000
$
1
Class 2-A-12
$
660,000
6.00%
$
1,000
$
1
Class 2-A-13
$
564,583
6.00%
$
564,583
N/A
Class 3-A-1
$ 78,704,000
5.75%
$
1,000
$
1
Class 3-A-2
$
5,170,000
5.75%
$
1,000
$
1
Class 3-A-3
$
981,000
5.75%
$
1,000
$
1
Class 3-A-4
$
8,827,000
5.75%
$
1,000
$
1
Class 4-A-1
$
3,239,000
6.00%
$
1,000
$
1
Class 4-A-2
$ 29,150,000
6.00%
$
1,000
$
1
Class 4-A-3
$
7,449,000
6.00%
$
1,000
$
1
Class 4-A-4
$183,548,000
6.00%
$
1,000
$
1
Class 4-A-5
$ 12,312,000
6.00%
$
1,000
$
1
Class 4-A-6
$ 59,248,000
6.00%
$
1,000
$
1
Class 4-A-7
$
5,012,000
6.00%
$
1,000
$
1
Class 4-A-8
$ 11,300,000
6.00%
$
1,000
$
1
Class 30-IO
$ 18,479,794
(7)
$1,000,000
$
1
Class 30-PO
$
1,401,033
(8)
$
25,000
$
1
-2-
INTEGRAL
INITIAL CLASS
PASS-
MULTIPLES IN
CERTIFICATE BALANCE
THROUGH
MINIMUM
EXCESS OF
CLASSES
OR NOTIONAL AMOUNT
RATE
DENOMINATION
MINIMUM
------------
-------------------
-------
------------
------------
Class B-1
$15,232,000
(9)
$25,000
$1
Class B-2
$ 4,605,000
(9)
$25,000
$1
Class B-3
$ 2,834,000
(9)
$25,000
$1
Class B-4
$ 2,125,000
(9)
$25,000
$1
Class B-5
$ 1,417,000
(9)
$25,000
$1
Class B-6
$ 1,417,041
(9)
$25,000
$1
INITIAL COMPONENT
INTEGRAL
BALANCE OR
PASS-
MULTIPLES IN
COMPONENT NOTIONAL
THROUGH
MINIMUM
EXCESS OF
COMPONENTS
AMOUNT
RATE
DENOMINATION
MINIMUM
-------------
------------------
-------
------------
------------
Class 1-30-IO
$11,801,931
6.000%
N/A
N/A
Class 2-30-IO
$ 1,191,104
6.000%
N/A
N/A
Class 3-30-IO
$ 1,208,624
6.000%
N/A
N/A
Class 4-30-IO
$ 4,278,133
6.000%
N/A
N/A
Class 1-30-PO
$
824,157
(10)
N/A
N/A
Class 3-30-PO
$
576,876
(10)
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 6.000% 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) 0.750% plus (ii)
LIBOR
determined monthly, subject to a minimum rate of 0.750% and a
maximum rate
of 6.000%.
(2)
During the initial Interest Accrual Period, interest will accrue on
the
Class 1-A-2 Certificates at the rate of 0.000% 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) 5.250% minus (ii)
LIBOR
determined monthly, subject to a minimum rate of 0.000% and a
maximum rate
of 5.250%
(3)
During the initial Interest Accrual Period, interest will accrue on
the
Class 1-A-7 Certificates at the rate of 5.760% per annum. During
each
Interest Accrual Period thereafter, interest will accrue on the
Class 1-A-7
Certificates at a per annum rate equal to (i) 0.430% plus (ii)
LIBOR
determined monthly, subject to a minimum rate of 0.430% and a
maximum rate
of 6.000%.
(4)
During the initial Interest Accrual Period, interest will accrue on
the
Class 1-A-8 Certificates at the rate of 0.240% per annum. During
each
Interest Accrual Period thereafter, interest will accrue on the
Class 1-A-8
Certificates at a per annum rate equal to (i) 5.570% minus (ii)
LIBOR
determined monthly, subject to a minimum rate of 0.000% and a
maximum rate
of 5.570%.
(5)
During the initial Interest Accrual Period, interest will accrue on
the
Class 1-A-13 Certificates at the rate of 6.000% per annum. During
each
Interest Accrual Period thereafter, interest will accrue on the
Class
1-A-13 Certificates at a per annum rate equal to (i) 0.750% plus
(ii) LIBOR
determined monthly, subject to a minimum rate of 0.750% and a
maximum rate
of 6.000%.
(6)
During the initial Interest Accrual Period, interest will accrue on
the
Class 1-A-14 Certificates at the rate of 0.000% per annum. During
each
Interest Accrual Period thereafter, interest will accrue on the
Class
1-A-14 Certificates at a per annum rate equal to (i) 5.250% minus
(ii)
LIBOR determined monthly, subject to a minimum rate of 0.000% and a
maximum
rate of 5.250%.
(7)
The Class 30-IO Certificates are Interest Only Certificates and
will be
deemed for purposes of distributions of interest to consist of four
Components: the Class 1-30-IO, Class 2-30-IO, Class 3-30-IO and
Class
4-30-IO Components. The Components of the Class 30-IO Certificates
are not
severable.
(8)
The Class 30-PO Certificates are Principal Only Certificates and
will be
deemed for purposes of distributions of principal to consist of two
Components: the Class 1-30-PO and Class 3-30-PO Components. The
Components
of the Class 30-PO Certificates are not severable.
(9)
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, 6.000%, (ii) with respect to Loan Group 2, 6.000%, (iii) with
respect to
Loan Group 3, 5.750% and (iv) with respect to Loan Group 4, 6.000%.
(10) The Class 1-30-PO and Class 3-30-PO Components are Principal
Only
Components and will not be entitled to distributions in respect of
interest.
-3-
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:
10-K Filing Deadline: As defined in Section 3.22(c).
1933 Act: The Securities Act of 1933, as amended.
Accretion Termination Date: For (i) the Class 1-A-12 Certificates,
the
earlier to occur of (1) the Distribution Date following the
Distribution Date on
which the aggregate Class Certificate Balance of the Class 1-A-1
and Class 1-A-3
Certificates has been reduced to zero and (2) the Senior Credit
Support
Depletion Date and (ii) the Class 3-A-2 Certificates, the earlier
to occur of
(1) the Distribution Date following the Distribution Date on which
the Class
Certificate Balance of the Class 3-A-1 Certificates has been
reduced to zero and
(2) the Senior Credit Support Depletion Date.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class (other than the Class 30- 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 30-IO Certificates,
the sum of
the Accrued Component Interest for each Class 30-IO Component.
Accrued Component Interest: For any Distribution Date and each IO
Component, one month's interest accrued during the related Interest
Accrual
Period at the applicable Pass-Through Rate on the applicable
Notional Amount.
Additional Disclosure Notification: The form of notification to be
included
with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or
Form 8-K Disclosure Information which is attached hereto as Exhibit
T.
Additional Form 10-D Disclosure: As defined in Section 3.22(b).
Additional Form 10-K Disclosure: As defined in Section 3.22(c).
Additional Servicer: A Subcontractor engaged by the Master Servicer
or the
Securities Administrator that is a "servicer" within the meaning of
Item 1101 of
Regulation AB and meets the criteria in Item 1108(a)(2)(i) through
(iii) of
Regulation AB.
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 on such Distribution Date and all prior
Distribution
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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 any 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 any Loan Group, the sum of the amount, calculated as follows,
with respect
to each Outstanding Mortgage Loan in such Loan Group: 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 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. The
Adjusted Pool Amount (PO Portion) for Loan Group 2 and Loan Group 4
will be
zero.
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 Group: The Class 2-A-6, Class 2-A-7, Class 2-A-10, Class
2-A-11,
Class 2-A-12 and Class 2-A-13 Certificates.
Aggregate Group Principal Amount: As to any Distribution Date and
for the
Aggregate Group, the amount, if any, that would reduce the
aggregate Class
Certificate Balance of the Aggregate Group to the applicable
balance shown in
the applicable table set forth in Exhibit O with respect to such
Distribution
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
all of 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 or tax assessed value and (b) the sales
price for such
property, except that, in the case of Mortgage Loans the proceeds
of which were
used to refinance an existing mortgage loan, the Appraised Value of
the related
Mortgaged Property is the appraised value thereof determined in an
appraisal
obtained at the time of refinancing or, in certain cases, an
automated valuation
model or tax assessed value, or
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(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.
Assessment of Compliance: As defined in Section 3.21(a).
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.
Attestation Report: As defined in Section 3.21(b).
Authenticating Agents: As defined in Section 9.10.
Back-up Certification: As defined in Section 3.22(e).
BAFC: Banc of America Funding Corporation.
BAMCC: Banc of America Mortgage Capital Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
BANA Servicing Agreement: The Servicing Agreement, dated September
28,
2006, by and between BAFC, as depositor, and BANA, as servicer.
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.
Buy-Down Account: The separate Eligible Account or Accounts created
and
maintained by a Servicer pursuant to Section 3.08.
Buy-Down Agreement: An agreement governing the application of
Buy-Down
Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested
party to reduce a Mortgagor's monthly payment during the initial
years of a
Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to
a Buy-Down Agreement, the monthly interest payments made by the
related
Mortgagor will be less than the scheduled monthly interest payments
on such
Mortgage Loan, with the resulting difference in interest payments
being provided
from Buy-Down Funds.
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Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2006-5 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 U.S. Bank National Association, as Trustee, in
trust for
registered holders of Banc of America Funding Corporation Mortgage
Pass-Through
Certificates, Series 2006-5." 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 Intermediate Lower-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 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.
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 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
neither the
Securities Administrator nor the Trustee shall be responsible for
knowing that
any Certificate is registered in the name of an affiliate of the
Depositor or
the Master Servicer unless one of its Responsible Officers has
actual knowledge
thereof.
Chase: JPMorgan Chase Bank, National Association, in its capacity
as a
Servicer under the Chase Servicing Agreement.
Chase Servicing Agreement: Collectively, (i) that certain Mortgage
Loan
Purchase, Warranties and Servicing Agreement, dated as of May 1,
2005, as
amended by Amendment No. 1,
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dated as of January 1, 2006, and as further amended by the
Regulation AB
Compliance Addendum, dated as of January 1, 2006, each by and among
BANA, Chase
Home Finance LLC and Chase, and (ii) the Assignment Assumption and
Recognition
Agreement, dated September 28, 2006, by and among BANA, the
Depositor, the
Trustee, the Master Servicer, Chase Home Finance LLC and Chase. For
the purposes
of Section 2.02, the Chase Servicing Agreement shall refer to the
Mortgage Loan
Purchase, Warranties and Servicing Agreement, dated as of January
1, 2005, by
and between Chase Home Finance LLC and BANA, as modified by the
Assignment,
Assumption and Recognition Agreement, dated June 30, 2006, among
J.P. Morgan
Mortgage Acquisition Corp., BANA, Chase, and Chase Home Finance
LLC.
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-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13, Class
1-A-14, Class
2-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 2-A-9, Class 2-A-10, Class
2-A-11, Class
2-A-12, Class 2-A-13, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class
3-A-4, Class
4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5, Class
4-A-6, Class
4-A-7, Class 4-A-8, Class 30-IO, Class 30-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 1-30-IO Notional Amount: With respect to each Distribution
Date and
the Class 1-30-IO Component, an amount equal to the product of (i)
the aggregate
Stated Principal Balance 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 6.00% and
(b) the denominator of which is equal to 6.00%.
Class 1-A-1 Interest: The REMIC Regular Interest in the Upper-Tier
REMIC
that corresponds to the Class 1-A-1 Certificates.
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 Eligible Account created and
maintained by
the Securities Administrator pursuant to Section 3.09(d) in the
name of the
Securities Administrator, on behalf of the Trustee, for the benefit
of the
Holders of the Class 1-A-1 Certificates and designated "Class 1-A-1
Reserve
Fund, Wells Fargo Bank, N.A., as Securities Administrator for U.S.
Bank National
Association, as Trustee, in trust for registered holders of Banc of
America
Funding Corporation Mortgage Pass-Through Certificates, Series
2006-5, Class
1-A-1." 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 for the
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benefit of the Class 1-A-1 Certificates, substantially in the form
attached
hereto as Exhibit U-1. 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
prior to and including the Distribution Date in July 2022, 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-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 on such date.
Class 1-A-3 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-3 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 1-A-3 Loss
Allocation
Amount and (b) the Class 1-A-1 Loss Amount with respect to such
Distribution
Date.
Class 1-A-4 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-4 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-5 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-5 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 1-A-5 Loss
Allocation
Amount and (b) the Class 1-A-4 Loss Amount with respect to such
Distribution
Date.
Class 1-A-7 Interest: The REMIC Regular Interest in the Upper-Tier
REMIC
that corresponds to the Class 1-A-7 Certificates.
Class 1-A-7 Reserve Fund: The Eligible Account created and
maintained by
the Securities Administrator pursuant to Section 3.09(d) in the
name of the
Securities Administrator, on behalf of the Trustee, for the benefit
of the
Holders of the Class 1-A-7 Certificates and designated "Class 1-A-7
Reserve
Fund, Wells Fargo Bank, N.A., as Securities Administrator for U.S.
Bank National
Association, as Trustee, in trust for registered holders of Banc of
America
Funding Corporation Mortgage Pass-Through Certificates, Series
2006-5, Class
1-A-7." Amounts on deposit in the Class 1-A-7 Reserve Fund shall
not be
invested. The Class 1-A-7 Reserve Fund shall not be an asset of any
REMIC formed
under this Agreement.
Class 1-A-7 Yield Maintenance Agreement: The yield maintenance
agreement
between the Securities Administrator, on behalf of the Trust, and
the
Counterparty, which will be for the benefit of the Class 1-A-7
Certificates,
substantially in the form attached hereto as Exhibit U-2. The Class
1-A-7 Yield
Maintenance Agreement shall not be an asset of any REMIC formed
under this
Agreement.
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Class 1-A-7 Yield Maintenance Agreement Payment: For any
Distribution Date
prior to and including the Distribution Date in January 2012, the
amount, if
any, required to be paid by the Counterparty to the Securities
Administrator
under the Class 1-A-7 Yield Maintenance Agreement.
Class 1-A-8 Notional Amount: As to any Distribution Date and the
Class
1-A-8 Certificates, the Class Certificate Balance of the Class
1-A-7
Certificates on such date.
Class 1-A-12 Accrual Distribution Amount: For any Distribution Date
and the
Class 1-A-12 Certificates prior to the related Accretion
Termination Date, an
amount with respect to such Class equal to the sum of (i) the
amount allocated
but not currently distributable as interest to such Class pursuant
to Section
5.02(a)(i) that is attributable to clause (i) of the definition of
"Interest
Distribution Amount," and (ii) the amount allocated but not
currently
distributable as interest to such Class pursuant to Section
5.02(a)(i) that is
attributable to clause (ii) of the definition of "Interest
Distribution Amount."
Class 1-A-13 Interest: The REMIC Regular Interest in the Upper-Tier
REMIC
that corresponds to the Class 1-A-13 Certificates.
Class 1-A-13 Reserve Fund: The Eligible Account created and
maintained by
the Securities Administrator pursuant to Section 3.09(d) in the
name of the
Securities Administrator, on behalf of the Trustee, for the benefit
of the
Holders of the Class 1-A-13 Certificates and designated "Class
1-A-13 Reserve
Fund, Wells Fargo Bank, N.A., as Securities Administrator for U.S.
Bank National
Association, as Trustee, in trust for registered holders of Banc of
America
Funding Corporation Mortgage Pass-Through Certificates, Series
2006-5, Class
1-A-13." Amounts on deposit in the Class 1-A-13 Reserve Fund shall
not be
invested. The Class 1-A-13 Reserve Fund shall not be an asset of
any REMIC
formed under this Agreement.
Class 1-A-13 Yield Maintenance Agreement: The yield maintenance
agreement
between the Securities Administrator, on behalf of the Trust, and
the
Counterparty, which will be for the benefit of the Class 1-A-13
Certificates,
substantially in the form attached hereto as Exhibit U-3. The Class
1-A-13 Yield
Maintenance Agreement shall not be an asset of any REMIC formed
under this
Agreement.
Class 1-A-13 Yield Maintenance Agreement Payment: For any
Distribution Date
prior to and including the Distribution Date in August 2036, the
amount, if any,
required to be paid by the Counterparty to the Securities
Administrator under
the Class 1-A-13 Yield Maintenance Agreement.
Class 1-A-14 Notional Amount: As to any Distribution Date and the
Class
1-A-14 Certificates, the Class Certificate Balance of the Class
1-A-13
Certificates on such date.
Class 2-30-IO Notional Amount: With respect to each Distribution
Date and
the Class 2-30-IO Component, an amount equal to the product of (i)
the aggregate
Stated Principal Balance 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
-10-
month preceding the month of such Distribution Date) minus 6.000%
and (b) the
denominator of which is equal to 6.00%.
Class 2-A-6 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-6 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-7 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-7 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 2-A-7 Loss
Allocation
Amount and (b) the Class 2-A-6 Loss Amount with respect to such
Distribution
Date.
Class 2-A-13 Notional Amount: As to any Distribution Date and the
Class
2-A-13 Certificates, an amount equal to the product of (a) the
Class Certificate
Balance of the Class 2-A-10 Certificates on such date and (b) a
fraction, the
numerator of which is 0.250% and the denominator of which is
6.000%.
Class 3-30-IO Notional Amount: With respect to each Distribution
Date and
the Class 3-30-IO Component, an amount equal to the product of (i)
the aggregate
Stated Principal Balance 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 5.75% and
(b) the denominator of which is equal to 6.00%.
Class 3-A-2 Accrual Distribution Amount: For any Distribution Date
and the
Class 3-A-2 Certificates prior to the related Accretion Termination
Date, an
amount with respect to such Class equal to the sum of (i) the
amount allocated
but not currently distributable as interest to such Class pursuant
to Section
5.02(a)(i) that is attributable to clause (i) of the definition of
"Interest
Distribution Amount," and (ii) the amount allocated but not
currently
distributable as interest to such Class pursuant to Section
5.02(a)(i) that is
attributable to clause (ii) of the definition of "Interest
Distribution Amount."
Class 3-A-3 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 3-A-3 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 3-A-3 Loss
Allocation
Amount and (b) the Class 3-A-4 Loss Amount with respect to such
Distribution
Date.
Class 3-A-4 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 3-A-4 Certificate 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).
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Class 4-30-IO Notional Amount: With respect to each Distribution
Date and
the Class 4-30-IO Component, an amount equal to the product of (i)
the aggregate
Stated Principal Balance 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 6.000%
and (b) the denominator of which is equal to 6.00%.
Class 4-A-1 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 4-A-1 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 4-A-1 Loss
Allocation
Amount and (b) the Class 4-A-2 Loss Amount with respect to such
Distribution
Date.
Class 4-A-2 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 4-A-2 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 4-A-3 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 4-A-3 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 4-A-3 Loss
Allocation
Amount and (b) the Class 4-A-4 Loss Amount with respect to such
Distribution
Date.
Class 4-A-4 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 4-A-4 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 4-A-6 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 4-A-6 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 4-A-7 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 4-A-7 Certificate with respect to
such
Distribution Date prior to any reduction for the Class 4-A-7 Loss
Allocation
Amount and (b) the Class 4-A-6 Loss Amount with respect to such
Distribution
Date.
Class 30-IO Notional Amount: With respect to any Distribution Date,
an
amount equal to the sum of the Class 1-30-IO Notional Amount, the
Class 2-30-IO
Notional Amount, the Class 3-30-IO Notional Amount and the Class
4-30-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.
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Class Certificate Balance: With respect to any Class of
Certificates (other
than the Class 1-A-2, Class 1-A-8, Class 1-A-14, Class 2-A-13,
Class 30-IO and
Class 30-PO Certificates) and any date of determination, and
subject to Section
5.03(f), an amount equal to (a) the Initial Class Certificate
Balance of such
Class (plus, in the case of the Class 1-A-12 and Class 3-A-2
Certificates, any
Class 1-A-12 Accrual Distribution Amounts and Class 3-A-2 Accrual
Distribution
Amounts, respectively, previously added thereto) minus (A) the sum
of (i) all
distributions of principal made with respect thereto (including in
the case of a
Class of Subordinate Certificates, any principal otherwise payable
to such Class
of Subordinate Certificates used to pay any 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-3, Class
1-A-5, Class
2-A-7, Class 3-A-3, Class 4-A-1, Class 4-A-3 and Class 4-A-7
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-3, Class
1-A-5, Class
2-A-7, Class 3-A-3, Class 4-A-1, Class 4-A-3 and Class 4-A-7
Certificates, any
increases allocated thereto pursuant to Section 5.03(e). The Class
Certificate
Balance of the Class 30-PO Certificates as of any date of
determination shall
equal the sum of the Component Balances of the PO Components. The
Class 1-A-2,
Class 1-A-8, Class 1-A-14, Class 2-A-13 and Class 30-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 30-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 (or, in the case of the Class 1-A-12 and Class 3-A-2
Certificates prior to
the applicable Accretion Termination Date, the amount included in
the Class
1-A-12 Accrual Distribution Amount or Class 3-A-2 Accrual
Distribution Amount,
as applicable, pursuant to clause (i) of the definition thereof,
but not
distributed pursuant to the proviso in Section 5.02(a)(i)) on such
Distribution
Date pursuant to clause (i) of the definition of "Interest
Distribution Amount."
For any Distribution Date and the Class 30-IO Certificates, the sum
of the
Component Interest Shortfalls for the Class 30-IO Components, as
applicable.
Class Unpaid Interest Shortfall: As to any Distribution Date and
each
interest-bearing Class (other than the Class 30-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 (or, in the case of the Class 1-A-12 and Class 3-A-2
Certificates prior to
the applicable Accretion Termination Date, the amount included in
the Class
1-A-12 Accrual Distribution Amount or Class 3-A-2 Accrual
Distribution Amount,
as applicable, pursuant to clause (ii) of the definition thereof,
but not
distributed pursuant to the proviso in Section 5.02(a)(i)) on such
prior
Distribution Dates pursuant to clause (ii) of the definition of
"Interest
Distribution Amount." As to any Distribution Date and the Class
30-IO
Certificates, the sum of the Component Unpaid Interest Shortfalls
for the Class
30-IO Components.
Closing Date: September 28, 2006.
Code: The Internal Revenue Code of 1986, as amended.
Commission: The U.S. Securities and Exchange Commission.
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Compensating Interest: With respect to any Distribution Date and
Servicer,
an amount equal to the lesser of (a) (other than with respect to
GMACM and
National City Mortgage) the aggregate Servicing Fee payable to such
Servicer for
the Mortgage Loans serviced by such Servicer 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 serviced by
such Servicer
resulting from Principal Prepayments on such Mortgage Loans during
the calendar
month preceding the month of such Distribution Date.
Compliance Statement: As defined in Section 3.20.
Component: Any of the IO Components or PO Components.
Component Balance: With respect to any 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 IO Components are interest only
Components and
have no Component Balance.
Component Interest Distribution Amount: For any Distribution Date
and any
IO Component, the sum of (i) the Accrued Component Interest for
such Component
and (ii) any Component Unpaid Interest Shortfall for such
Component. The PO
Components are principal only Components and are not entitled to
distributions
of interest.
Component Interest Shortfall: For any Distribution Date and any 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
1-30-IO Notional Amount, Class 2-30-IO Notional Amount, Class
3-30-IO Notional
Amount or Class 4-30-IO Notional Amount, as applicable.
Component Unpaid Interest Shortfall: As to any Distribution Date
and any 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.
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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 office of
the
Trustee, which office at the date of the execution of this
instrument is located
at 209 South LaSalle Street, Suite 300, Chicago, Illinois 60604,
Attention:
Corporate Trust Services, BAFC, Series 2006-5, 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
2006-5, and for certificate transfer purposes is located at Sixth
Street and
Marquette Avenue, Minneapolis, Minnesota 55479, Attention:
Corporate Trust
Services - BAFC 2006-5, 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, Component or Components:
As to the
following Uncertificated Intermediate Lower-Tier Interests, the
Corresponding
Upper-Tier Class, Classes or Component, as follows:
UNCERTIFICATED
CORRESPONDING UPPER-TIER
INTERMEDIATE LOWER-TIER INTEREST
CLASS, CLASSES, COMPONENT OR COMPONENTS
--------------------------------
---------------------------------------------
Class 1-A-IT1
1-A-1, 1-A-2
Class 1-A-IT2
1-A-7, 1-A-8
Class 1-A-IT3
1-A-13, 1-A-14
Class 1-A-IT-4
1-A-3, 1-A-4, 1-A-5, 1-A-6, 1-A-9, 1-A-10,
1-A-11, 1-A-12
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UNCERTIFICATED
CORRESPONDING UPPER-TIER
INTERMEDIATE LOWER-TIER INTEREST
CLASS, CLASSES, COMPONENT OR COMPONENTS
--------------------------------
---------------------------------------------
Class 1-ITIO
1-30-IO
Class 1-ITPO
1-30-PO
Class 2-A-IT1
2-A-1, 2-A-2, 2-A-3, 2-A-4, 2-A-5, 2-A-6,
2-A-7, 2-A-8, 2-A-9, 2-A-11, 2-A-12
Class 2-A-IT2
2-A-10, 2-A-13
Class 2-A-ITR
2-A-R
Class 2-ITIO
2-30-IO
Class 3-A-IT1
3-A-1, 3-A-2, 3-A-3, 3-A-4
Class 3-ITIO
3-30-IO
Class 3-ITPO
3-30-PO
Class 4-A-IT1
4-A-1, 4-A-2, 4-A-3, 4-A-4, 4-A-5, 4-A-6,
4-A-7, 4-A-8
Class 4-ITIO
4-30-IO
Class B-IT1
B-1
Class B-IT-2
B-2
Class B-IT3
B-3
Class B-IT4
B-4
Class B-IT5
B-5
Class B-IT6
B-6
Counterparty: Bank of America, National Association.
Custodian: Initially, the Trustee and thereafter any custodian
appointed by
the Trustee pursuant to Section 9.12. A Custodian may (but need
not) be the
Trustee or any Person directly or indirectly controlling or
controlled by or
under common control of either of them. None of the Master
Servicer, any
Servicer or the Depositor, or any Person directly or indirectly
controlling or
controlled by or under common control with any such Person may be
appointed
Custodian.
Customary Servicing Procedures: With respect to (i) any Servicer,
procedures (including collection procedures) that a Servicer
customarily employs
and exercises in servicing and
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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: September 1, 2006.
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 $192,762,923.78 for Loan Group 1, $93,696,354.40 for Loan
Group 2,
$98,084,279.66 for Loan Group 3 and $323,890,617.06 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
applicable 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.
Deceased Holder: A Certificate Owner of a Special Retail
Certificate who
was living at the time such interest was acquired and whose
executor or other
authorized representative causes to be furnished to the Securities
Administrator
and the Depository Participant a certified copy of the death
certificate and any
additional evidence of death satisfactory to the Securities
Administrator and
the Depository Participant and any tax waivers requested by the
Securities
Administrator and the Depository Participant.
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
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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
applicable 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
applicable 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).
Denomination: The amount, if any, specified on the face of each
Certificate
(other than an Interest Only Certificate) representing the
principal portion of
the Initial Class Certificate Balance evidenced by such
Certificate. As to any
Interest Only Certificate, the amount specified on the face of each
such
Certificate representing the portion of the Initial Notional Amount
evidenced by
such Certificate.
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 and for
each
Servicer, as defined in the applicable Servicing Agreement.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan or Group
3
Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in October
2006
(or, if such day is not a Business Day, the next Business Day).
Document Transfer Event: The 60th day following the day on which
either (i)
Wells Fargo Bank is no longer the Servicer of any of the Mortgage
Loans
purchased by the Sponsor from Wells Fargo Bank, N.A. or (ii) the
senior,
unsecured long-term debt rating of Wells Fargo & Company is
less than "BBB-" by
Fitch.
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day
in the calendar month of such Distribution Date.
EDGAR: The Commission's Electronic Data Gathering and Retrieval
System.
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
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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, the Securities Administrator and the Master Servicer),
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, the
Securities Administrator, the Master Servicer or BANA.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class 2-A-R, Class B-4,
Class B-5
and Class B-6 Certificates and any Certificate that no longer meets
the
applicable rating requirements of an Underwriter's Exemption.
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 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
applicable
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.
-19-
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 LP, Intex Solutions, Inc. 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.
Fitch: Fitch Ratings, or any successor thereto.
Form 8-K Disclosure Information: As defined in Section 3.22(d).
Fractional Interest: As defined in Section 5.02(d).
GMACM: GMAC Mortgage Corporation, in its capacity as Servicer under
the
GMACM Servicing Agreement.
GMACM Servicing Agreement: Collectively, the Master Flow Sale and
Servicing
Agreement, dated as of August 1, 2003, by and between BANA (as
successor in
interest to BAMCC), as purchaser, and GMACM, as seller, (ii) that
certain Global
Amendment to Sale and Servicing Agreements, dated as of September
1, 2005, by
and among GMACM, BAMCC and BANA, (iii) that certain Regulation AB
Compliance
Addendum to the Master Flow Sale and Servicing Agreement, dated as
of January 1,
2006, by and between GMACM and BANA, (iv) that certain Assignment
and Conveyance
Agreement, dated as of May 15, 2006, by and between GMACM and BANA,
and (v) the
Assignment Assumption and Recognition Agreement, dated September
28, 2006, by
and among BANA, the Depositor, the Trustee, the Master Servicer and
GMACM.
Group: Any of Group 1, Group 2, Group 3 or Group 4.
Group 1: The Group 1 Senior Certificates, the Class 1-30-IO
Component and
the Class 1-30-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
6.000% per
annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 PAC Certificates: The Class 1-A-10 and Class 1-A-11
Certificates.
Group 1 PAC Principal Amount: As to any Distribution Date and the
Group 1
PAC Certificates, the amount, if any, that would reduce the
aggregate Class
Certificate Balance of the Group 1 PAC Certificates to the
applicable balance
shown in the applicable table set forth in Exhibit O with respect
to such
Distribution Date.
-20-
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
6.000% per annum.
Group 1 Priority Amount: For any Distribution Date will equal the
lesser of
(i) the aggregate Class Certificate Balance of the Class 1-A-4 and
Class 1-A-5
Certificates for such Distribution Date and (ii) the product for
such
Distribution Date of (a) the Shift Percentage, (b) the Group 1
Priority
Percentage and (c) the Non-PO Principal Amount for Loan Group 1.
Group 1 Priority Percentage: For any Distribution Date will equal
(i) the
aggregate Class Certificate Balance of the Class 1-A-4 and Class
1-A-5
Certificates for such Distribution Date divided by (ii) the Pool
Stated
Principal Balance (Non-PO Portion) of Loan Group 1.
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-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13 and Class
1-A-14
Certificates.
Group 2: The Group 2 Senior Certificates and the Class 2-30-IO
Component.
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
6.000% per annum. All of the Group 2 Mortgage Loans are Group 2
Premium Mortgage
Loans.
Group 2 Senior Certificates: The Class 2-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 2-A-9, Class 2-A-10, Class 2-A-11, Class 2-A-12 and Class
2-A-13
Certificates.
Group 3: The Group 3 Senior Certificates, the Class 3-30-IO
Component and
the Class 3-30-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
5.750% per
annum.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Priority Amount: For any Distribution Date will equal the
lesser of
(i) the aggregate Class Certificate Balance of the Class 3-A-3 and
Class 3-A-4
Certificates for such Distribution Date and (ii) the product for
such
Distribution Date of (a) the Shift Percentage, (b) the Group 3
Priority
Percentage and (c) the Non-PO Principal Amount for Loan Group 3.
Group 3 Priority Percentage: For any Distribution Date will equal
(i) the
aggregate Class Certificate Balance of the Class 3-A-3 and Class
3-A-4
Certificates for such Distribution Date divided by (ii) the Pool
Stated
Principal Balance (Non-PO Portion) of Loan Group 3.
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
5.750% per annum.
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Group 3 Senior Certificates: The Class 3-A-1, Class 3-A-2, Class
3-A-3 and
Class 3-A-4 Certificates.
Group 4: The Group 4 Senior Certificates and the Class 4-30-IO
Component.
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
6.000% per annum. All of the Group 4 Mortgage Loans are Group 4
Premium Mortgage
Loans.
Group 4 Priority Amount: For any Distribution Date will equal the
lesser of
(i) the aggregate Class Certificate Balance of the Class 4-A-1 and
Class 4-A-2
Certificates for such Distribution Date and (ii) the product for
such
Distribution Date of (a) the Shift Percentage, (b) the Group 4
Priority
Percentage and (c) the Non-PO Principal Amount for Loan Group 4.
Group 4 Priority Percentage: For any Distribution Date will equal
(i) the
aggregate Class Certificate Balance of the Class 4-A-1 and Class
4-A-2
Certificates for such Distribution Date divided by (ii) the Pool
Stated
Principal Balance (Non-PO Portion) of Loan Group 4.
Group 4 Senior Certificates: The Class 4-A-1, Class 4-A-2, Class
4-A-3,
Class 4-A-4, Class 4-A-5, Class 4-A-6, Class 4-A-7 and Class 4-A-8
Certificates.
Group Subordinate Amount: With respect to any Distribution Date and
any
Loan Group, the excess of the Pool Stated Principal Balance (Non-PO
Portion) for
such Loan Group over the aggregate Class Certificate Balance of the
Senior
Non-PO Certificates of the Related Group immediately prior to such
date.
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 Servicers,
(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 Servicers 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 Servicers as an officer, employee, promoter,
underwriter,
trustee, partner, director or person performing similar functions.
When used
with respect to any accountants, a Person who is "independent"
within the
meaning of Rule 2-01(B) of the Commission's Regulation S-X.
Initial Class Certificate Balance: As to each Class of Certificates
(other
than the Class 1-A-2, Class 1-A-8, Class 1-A-14, Class 2-A-13 and
Class 30-IO
Certificates), the Class Certificate Balance set forth in the
Preliminary
Statement. The Class 1-A-2, Class 1-A-8, Class 1-A-14, Class 2-A-13
and Class
30-IO Certificates are Interest Only Certificates and have no
Initial Class
Certificate Balance.
Initial Component Balance: As to each PO Component, the Component
Balance
set forth in the Preliminary Statement.
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Initial Component Notional Amount: As to each IO Component, the
Component
Notional Amount set forth in the Preliminary Statement.
Initial Notional Amount: For the Class CB-IO Certificates, the sum
of the
Initial Component Notional Amounts for the Class IO Components. For
the Class
1-A-2, Class 1-A-8, Class 1-A-14 and Class 2-A-13 Certificates, the
respective
Notional Amounts 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 LIBOR Certificates
and the Class
30-IO Certificates) and each 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 LIBOR
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 (to the
extent of
the applicable Pool Distribution Amount) and each Class of
interest-bearing
Certificates (other than the Class 30-IO Certificates), the sum of
(i) the
Accrued Certificate Interest, subject to reduction pursuant to
Section 5.02(c)
and (ii) any Class Unpaid Interest Shortfall for such Class. For
any
Distribution Date and the Class 30-IO Certificates, the sum of the
Component
Interest Distribution Amounts for the IO Components.
Interest Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The
Class 1-A-2,
Class 1-A-8, Class 1-A-14, Class 2-A-13 and Class 30-IO
Certificates are the
only Classes of Interest Only Certificates.
Intermediate Lower-Tier Certificate Sub-Account: The sub-account of
the
Certificate Account designated by the Securities Administrator
pursuant to
Section 3.09(i).
Intermediate Lower-Tier Distribution Amount: As defined in Section
5.02(a).
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Intermediate Lower-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
Intermediate Lower-Tier
Certificate Sub-Account.
IO Component: Any of the Class 1-30-IO Component, the Class 2-30-IO
Component, the Class 3-30-IO Component and the Class 4-30-IO
Component.
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
1-A-7, Class
1-A-8, 1-A-13 and Class 1-A-14 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
applicable Servicer has certified (in accordance with the
applicable 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.
Living Holder: A Certificate Owner of a Special Retail Certificate
other
than a Deceased Holder.
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.
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Losses: As defined in Section 5.10.
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
Intermediate Lower-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. The Lower-Tier REMIC
shall not
include the Yield Maintenance Agreements, Reserve Funds or the
Rounding Account.
Lower-Tier REMICs: The Lower-Tier REMIC and the Intermediate
Lower-Tier
REMIC.
Master Servicer: CitiMortgage, Inc., 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
"CitiMortgage, Inc., as Master Servicer, in trust for the
registered holders of
Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series
2006-5."
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's Certificate: The monthly report required by
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 and the Trustee 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: As defined in Section 2.01(b)(iii).
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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.
Monthly Statement: As defined in Section 5.04(b).
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 September 28, 2006, between BANA, as seller, and the
Depositor, as
purchaser.
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) a code indicating the initial Servicer;
(xvi) the
Appraised Value; (xvii) the closing date of the Mortgage Loan; and
(xviii) a
code indicating whether the Mortgage Loan has a prepayment premium.
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.
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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.
National City Mortgage: National City Mortgage Co.
National City Mortgage Servicing Agreement: Collectively, the
Master
Seller's Warranties and Servicing Agreement, dated as of September
1, 2003, by
and between BANA (as successor in interest to BAMCC) and National
City Mortgage,
as amended by (i) Amendment No. 1, dated as of July 1, 2004, by and
among BAMCC,
National City Mortgage and BANA, (ii) the Master Assignment,
Assumption and
Recognition Agreement, dated as of July 1, 2004, by and among
BAMCC, National
City Mortgage, BANA and Wachovia Bank, National Association, (iii)
Amendment No.
2, dated as of October 1, 2004, by and between National City
Mortgage and BANA,
(iv) Amendment No. 3, dated as of August 11, 2005, by and between
National City
Mortgage and BANA, (v) that certain Regulation AB Compliance
Addendum to the
Master Seller's Warranties and Servicing Agreement, dated as of
January 1, 2006,
by and between National City Mortgage and BANA, (vi) that certain
Assignment,
Assumption and Recognition Agreement, dated May 30, 2006, by and
among BANA, UBS
and National City Mortgage, and (vii) the Assignment Assumption and
Recognition
Agreement, dated September 28, 2006, by and among BANA, the
Depositor, the
Trustee, the Master Servicer and National City Mortgage.
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
6.000% for each Group 1 Discount Mortgage Loan and 5.750% for each
Group 3
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
1, Loan
Group 2, Loan Group 3 and Loan Group 4, 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 (net
of
unreimbursed Advances and other amounts as to which the related
Servicer is
entitled to be reimbursed pursuant to the applicable Servicing
Agreement),
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(b) the Stated Principal Balance, as of the date of repurchase, of
(i) each
Mortgage Loan in such Loan Group that was repurchased by a Servicer
or UBS
pursuant to the applicable Servicing Agreement as of such
Distribution Date,
(ii) each Mortgage Loan in such Loan Group repurchased by the
Sponsor 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 Master Servicer pursuant to Section 10.01,
(c) any
Substitution Adjustment Amount (net of unreimbursed Advances and
other amounts
as to which the related Servicer is entitled to be reimbursed
pursuant to the
applicable Servicing Agreement) 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 net of unreimbursed
Advances
other than amounts to which the related Servicer is entitled to be
reimbursed
pursuant to the applicable Servicing Agreement allocable to
recoveries of
principal of Mortgage Loans in such Loan Group that are not yet
Liquidated
Mortgage Loans received by a 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 a
Servicer with respect to such Mortgage Loan during such period and
(f) with
respect to each Mortgage Loan, all Principal Prepayments other than
Payahead
Amounts on the Mortgage Loans in such Loan Group received by a
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 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 applicable
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-A-8
Certificates and any date of determination, the Class 1-A-8
Notional Amount, (c)
the Class 1-A-14 Certificates and any date of determination, the
Class 1-A-14
Notional Amount, (d) the Class 2-A-13 Certificates and any date of
determination, the Class 2-A-13 Notional Amount, (e) the Class
30-IO
Certificates and any date of determination, the Class 30-IO
Notional Amount, (f)
the Class 1-30-IO Component and any date of determination, the
Class 1-30-IO
Notional Amount, (g) the Class 2-30-IO Component and any date of
determination,
the Class 2-30-IO Notional Amount, (h) the
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Class 3-30-IO Component and any date of determination, the Class
3-30-IO
Notional Amount and (i) the Class 4-30-IO Component and any date of
determination, the Class 4-30-IO Notional Amount.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
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 required in this Agreement.
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 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
1.75%
Class B-2
1.10%
Class B-3
0.70%
Class B-4
0.40%
Class B-5
0.20%
Class B-6
0.00%
Original Subordinate Certificate Balance: $27,630,041.
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.
PAC Certificates: The Class 1-A-10, Class 1-A-11, Class 2-A-6,
Class 2-A-7,
Class 2-A-10, Class 2-A-11 and Class 2-A-13 Certificates.
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Pass-Through Rate: As to each Class of interest-bearing
Certificates (other
than the Class 30-IO Certificates), each IO Component and the Class
1-A-1, Class
1-A-7 and Class 1-A-13 Interests, 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 (other than a Special
Retail
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-A-8, Class 1-A-14, Class 2-A-13 and Class 30-IO
Certificates) by the
Initial Class Certificate Balance or Initial Notional Amount, as
applicable, of
the Class of which such Certificate is a part. With respect to a
Special Retail
Certificate, the percentage obtained by dividing the current
Certificate Balance
of each such Certificate by the current Class Certificate Balance
of the Class
of which such Certificate is a part.
Periodic Advance: With respect to each Servicer, shall have the
meaning
given to term "Monthly Advance" in the applicable 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 "P1" by Moody's, "F1" by Fitch 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 "F1" by Fitch, "P1" by Moody's and "A-1+" by S & P;
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(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 "F1" by Fitch,
"P1" by
Moody's and "A-1+" by S & P;
(v) investments in money market funds (including funds of the
Master
Servicer, the Securities Administrator, the Trustee or their
affiliates, or
funds for which an affiliate of the Master Servicer, the Securities
Administrator or the Trustee acts as advisor, as well as funds for
which
the Master Servicer, the Securities Administrator, the Trustee and
their
affiliates may receive compensation) rated "Aaa" by Fitch (if rated
by
Fitch), "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, Securities Administrator or Trustee, as the case
may be,
will not affect the qualification of the Trust Estate as three
separate
REMICs;
provided, however, that no instrument shall be a Permitted
Investment if it
represents either (a) the right to receive only interest payments
with respect
to the underlying debt instrument or (b) the right to receive both
principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of such
underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any
State or any political subdivision thereof, or any agency or
instrumentality of
any of the foregoing, (ii) a foreign government, international
organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization
which is exempt from tax imposed by Chapter 1 of the Code
(including the tax
imposed by Section 511 of the Code on unrelated business taxable
income) (except
certain farmers' cooperatives described in Code Section 521), (iv)
rural
electric and telephone cooperatives described in Code Section
1381(a)(2)(C), (v)
a Person with respect to whom the income on a Residual Certificate
is allocable
to a foreign permanent establishment or fixed base, within the
meaning of an
applicable income tax treaty, of such Person or any other U.S.
Person, and (vi)
any other Person so designated by the Depositor 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 2-A-R, Class B-4, Class B-5 and
Class B-6
Certificates.
Plan: As defined in Section 6.02(e).
PO Component: Any of the Class 1-30-PO Component and Class 3-30-PO
Component.
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PO Deferred Amount: As to any Distribution Date and each PO
Component, the
sum of the amounts by which the Component Balance of such 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 PO
Recoveries with
respect to the Related Loan Group for prior Distribution Dates and
(b) the
amounts distributed to such PO Component pursuant to Section
5.02(a)(iii) on
prior Distribution Dates.
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 any Loan
Group, the
sum of (i) the applicable PO Percentage of (a) the principal
portion of each
Monthly Payment (net of unreimbursed Advances and other amounts as
to which the
related Servicer is entitled to be reimbursed pursuant to the
applicable
Servicing Agreement) 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 a
Servicer or UBS
pursuant to the applicable Servicing Agreement as of such
Distribution Date,
(ii) each Mortgage Loan in such Loan Group repurchased by the
Sponsor 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 Master Servicer pursuant to Section 10.01;
(c) any
Substitution Adjustment Amount (net of unreimbursed Advances and
other amounts
as to which the related Servicer is entitled to be reimbursed
pursuant to the
applicable Servicing Agreement) 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 a
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 a Servicer with
respect to such
Mortgage Loan during such period; and (f) all Principal Prepayments
other than
Payahead Amounts on the Mortgage Loans in such Loan Group received
by a Servicer
during the calendar month preceding the month of such Distribution
Date; and
(ii) the PO Recovery for such Distribution Date.
PO Recovery: As to any Distribution Date, the lesser of (a) the PO
Deferred
Amount for the PO Component of the related Group, if any, for such
Distribution
Date, and (b) an amount equal to the sum, as to each Mortgage Loan
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 with
respect to such
Mortgage Loan received during the calendar month preceding the
month of such
Distribution Date.
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 (net of the
Servicing Fee)
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
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which such Distribution Date occurs and which is received prior to
the related
Determination Date and (B) all Periodic Advances made by a 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
applicable Servicer in respect of such Loan Group and such
Distribution Date
deposited to the Master Servicer Custodial Account pursuant to
Section
3.09(e)(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(e)(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(e)(i) during
such period
other than Payahead Amounts; (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(e)(vii); (v) any other amounts in the
Master
Servicer Custodial Account deposited therein pursuant to Section
3.09(e)(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; 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 in respect of such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and any
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 any 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.
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.
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Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest.
The Class 30-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 Payahead Amounts) 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 Sponsor 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 Section 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 applicable 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 related 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: Each of S&P, Fitch and Moody's. If any 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.
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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.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB),
17 C.F.R. Sections 229.1100 - 229.1123, as such may be amended from
time to
time, and subject to such clarification and interpretation as have
been provided
by the Commission in the adopting release (Asset-Backed Securities,
Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the
staff of the Commission, or as may be provided by the Commission or
its staff
from time to time.
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.
Relevant Servicing Criteria: The Servicing Criteria applicable to
the
various parties, as set forth on Exhibit P attached hereto. For
clarification
purposes, multiple parties can have responsibility for the same
Relevant
Servicing Criteria. With respect to a Servicing Function
Participant engaged by
the Master Servicer, the Securities Administrator, the Custodian or
any
Servicer, the term "Relevant Servicing Criteria" may refer to a
portion of the
Relevant Servicing Criteria applicable to such parties
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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. The Rounding Account, the Reserve Funds
and the Yield
Maintenance Agreements will not be assets of any REMIC created
hereunder.
REMIC Certificate Maturity Date: The "latest possible maturity
date" of any
REMIC Regular Interest issued by any REMIC formed hereunder, which
shall be the
Distribution Date after the date on which the latest maturing
Mortgage Loan
matures.
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.
REMIC Regular Interest: A "regular interest" in a REMIC within the
meaning
of Section 860G(a)(i) of the Code.
Remittance Date: The 18th day of each month beginning in October
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 a 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 a 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.
Reportable Event: As defined in Section 3.22(d).
Reporting Servicer: As defined in Section 3.22(c)(i).
Request for Release: The Request for Release submitted by a
Servicer to the
Custodian on behalf of the Trustee, substantially in the form
attached hereto as
Exhibit E.
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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 Funds: Any of the Class 1-A-1 Reserve Fund, the Class 1-A-7
Reserve
Fund or the Class 1-A-13 Reserve Fund.
Residual Certificate: The Class 2-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 direct responsibility for the administration of this
Agreement.
Restricted Classes: As defined in Section 5.02(d).
RFC: Residential Funding Corporation, in its capacity as a Servicer
under
the RFC Servicing Agreement.
RFC Servicing Agreement: Collectively, that certain Standard Terms
and
Provisions of Sale and Servicing Agreement, dated as of November 1,
2004, by and
between BANA and RFC, (ii) that certain Regulation AB Compliance
Addendum, dated
as of January 1, 2006, by and between RFC and BANA, (iii) that
certain Reference
Agreement, dated as of June 1, 2006, by and between RFC and BANA,
and (iv) the
Assignment Assumption and Recognition Agreement, dated September
28, 2006, by
and among BANA, the Depositor, the Trustee, the Master Servicer and
RFC.
Rounding Account: As defined in Section 3.23.
Rounding Amount: As defined in Section 3.23.
Sarbanes-Oxley Certification: As defined in Section 3.22(e).
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.
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-A-9, Class
1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13, Class 1-A-14,
Class 2-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 2-A-9, Class 2-A-10, Class 2-A-11,
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Class 2-A-12, Class 2-A-13, Class 3-A-1, Class 3-A-2, Class 3-A-3,
Class 3-A-4,
Class 4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5,
Class 4-A-6,
Class 4-A-7, Class 4-A-8, Class 30-IO and Class 30-PO Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class
Certificate Balance of the Subordinate Certificates has been
reduced to zero.
Senior Non-PO Certificates: The Senior Certificates other than the
Class
30-PO Certificates.
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 Non-PO
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 a Loan Group will occur unless both of
the Senior Step
Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and any
Loan Group, the sum of (a) 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 (b) 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.
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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 such 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
-----------------------------------
--------------------
October 2011 through September 2012
30%
October 2012 through September 2013
35%
October 2013 through September 2014
40%
October 2014 through September 2015
45%
October 2015 and thereafter
50%
Servicer: Any of BANA, National City Mortgage, SunTrust, GMACM,
RFC, Chase,
Washington Mutual or Wells Fargo Bank, each in their capacity as a
servicer of
the Mortgage Loans, or any successor servicer appointed as herein
provided.
Servicer Custodial Accounts: The separate accounts created and
maintained
by each of the Servicers pursuant to the applicable Servicing
Agreement.
Servicing Advance: With respect to each Servicer, shall have the
meaning
given to the term "Servicing Advances" in the applicable Servicing
Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement, GMACM
Servicing
Agreement, the RFC Servicing Agreement, the Chase Servicing
Agreement, the
National City Mortgage Servicing Agreement, the SunTrust Servicing
Agreement,
the Washington Mutual Servicing Agreement and the Wells Fargo
Servicing
Agreement.
Servicing Criteria: The criteria set forth in paragraph (d) of Item
1122 of
Regulation AB, as such may be amended from time to time
Servicing Fee: With respect to each Servicer, as defined in the
applicable
Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in the
applicable Servicing Agreement.
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Servicing File: With respect to each Mortgage Loan, as defined in
the
applicable Servicing Agreement.
Servicing Function Participant: Any Subcontractor utilized by the
Master
Servicer, the Securities Administrator or the Custodian that is
"participating
in the servicing function" within the meaning of Item 1122 of
Regulation AB.
Servicing Officer: With respect to each Servicer, as defined in the
related
Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the
Master
Servicer or the Trustee, as applicable, related to any termination
of a
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
any 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 such Servicer and (ii) any costs or expenses associated with the
complete
transfer of all servicing data and the completion, correction or
manipulation of
such servicing data as may be required by the 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: For any Distribution Date will be the percentage
indicated below:
DISTRIBUTION DATE OCCURRING IN
SHIFT PERCENTAGE
--------------------------------------
-----------------
October 2006 through September 2011...
0%
October 2011 through September 2012...
30%
October 2012 through September 2013...
40%
October 2013 through September 2014...
60%
October 2014 through September 2015...
80%
October 2015 and thereafter...........
100%
Similar Law: As defined in Section 6.02(e).
Special Retail Certificates: The Class 2-A-9 Certificates.
Sponsor: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the
Mortgage Loans under
the Mortgage Loan Purchase Agreement.
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
-40-
moratorium or similar waiver or grace period) after giving effect
to any
previous partial Principal Prepayments and Liquidation Proceeds net
of
unreimbursed expenses and unreimbursed Advances 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.
Subcontractor: Any vendor, subcontractor or other Person that is
not
responsible for the overall servicing of Mortgage Loans but
performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with
respect to
Mortgage Loans under the direction or authority of the Master
Servicer, the
Securities Administrator or the Custodian.
Subordinate Balance Ratio: As of any date of determination, the
ratio among
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 any Loan Group, an amount equal to the sum of (a) 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 (b)
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 credit grade not lower in quality than that of the Defective
Mortgage Loan,
(vii) have a remaining term to maturity not greater than (and not
more than one
(1) year less than) that of the Defective Mortgage Loan; (viii)
have the same
lien priority as the Defective Mortgage Loan; and (ix) comply with
each Mortgage
Loan representation and warranty set forth in the Mortgage Loan
Purchase
Agreement or the related Servicing Agreement, as the case may be.
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.
-41-
Substitution Adjustment Amount: As defined in Section 2.02.
SunTrust: SunTrust Mortgage, Inc., in its capacity as a Servicer
under the
SunTrust Servicing Agreement.
SunTrust Servicing Agreement: Collectively, (i) the Flow Sale and
Servicing
Agreement, dated as of February 1, 2004, by and between BANA (as
successor in
interest to Banc of America Mortgage Capital Corporation), as
purchaser, and
SunTrust, as seller, (ii) that certain Amendment No. 1, dated as of
June 1,
2004, by and between BANA and SunTrust, (iii) that certain Master
Assignment,
Assumption and Recognition Agreement, dated September 1, 2004, by
and among
BAMCC, SunTrust, BANA and Wachovia Bank, National Association, (iv)
that certain
Amendment No. 2, dated as of November 1, 2004, by and between BANA
and SunTrust,
(v) that certain Regulation AB Compliance Addendum to the Flow Sale
and
Servicing Agreement, dated as of January 1, 2006, by and between
BANA and
SunTrust, (vi) that certain Memorandum of Sale, dated as of May 25,
2006, by and
between BANA and SunTrust, (vii) that certain Memorandum of Sale,
dated as of
June 9, 2006, by and between BANA and SunTrust, (viii) that certain
Memorandum
of Sale, dated as of July 25, 2006, by and between BANA and
SunTrust, and (ix)
the Assignment Assumption and Recognition Agreement, dated
September 28, 2006,
by and among BANA, the Depositor, the Trustee, the Master Servicer
and SunTrust.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner provided under Treasury
Regulation
Section 1.860F-4(d) and Treasury Regulation Section
301.6231(a)(7)-1.
Telerate Page 3750: As defined in Section 5.09.
Total Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing (x)
the
aggregate Class Certificate Balance of the Senior Non-PO
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 "Banc
of America Funding 2006-5 Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting
the primary trust created hereby and to be administered hereunder,
with respect
to a portion of which 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 Rounding Account and the right to receive
amounts, if any,
payable on behalf of any Mortgagor from the Buy-Down Account
relating to any
Buy-Down Mortgage Loan, (v) the Depositor's rights under the
Servicing
Agreements and the Mortgage Loan Purchase Agreement (including any
security
interest created
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thereby), (vi) the Securities Administrator's rights under the
Yield Maintenance
Agreements and (vii) the Servicer Custodial Accounts, 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.
The Buy-Down Account shall not be part of the Trust Estate.
Trustee: U.S. Bank National Association, and its
successors-in-interest
and, if a successor trustee is appointed hereunder, such successor,
as trustee.
UBS: UBS Real Estate Securities Inc. and its
successors-in-interest.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier
REMIC which is held as an asset of the Intermediate Lower-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-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 and Class 4-LIO Interest
are
Uncertificated Lower-Tier Interests.
Uncertificated Intermediate Lower-Tier Interest: A regular interest
in the
Intermediate Lower-Tier REMIC which is held as an asset of the
Upper-Tier REMIC
and is entitled to monthly distributions as provided in Section
5.02(a) hereof.
Any of the Class 1-A-IT1 Interest, Class 1-A-IT2 Interest, Class
1-A-IT3
Interest, Class 1-A-IT4 Interest, Class 1-ITIO Interest, Class
1-ITPO Interest,
Class 2-A-IT1 Interest, Class 2-A-IT2 Interest, Class 2-ITIO
Interest, Class
2-A-ITR Interest, Class 3-A-IT1 Interest, Class 3-ITIO Interest,
Class 3-ITPO
Interest, Class 4-A-IT1 Interest, Class 4-ITIO Interest, Class
B-IT1 Interest,
Class B-IT2 Interest, Class B-IT3 Interest, Class B-IT4 Interest,
Class B-IT5
Interest and Class B-IT6 Interests are Uncertificated Intermediate
Lower-Tier
Interests.
Undercollateralized Amount: As defined in Section 5.02.
Undercollateralized Group: As defined in Section 5.02.
Underwriter's Exemption: An exemption listed in footnote 1 of, and
amended
by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(August 22,
2002), or any successor exemption.
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(i).
Upper Tier Regular Interest: As defined in the Preliminary
Statement.
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Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of
which consist of the Uncertificated Intermediate Lower-Tier
Interests and such
amounts as shall from time to time be deemed to be held in the
Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or
partnership (unless, in the case of a partnership, Treasury
Regulations are
adopted that provide otherwise) created or organized in or under
the laws of the
United States, any state thereof or the District of Columbia,
including an
entity treated as a corporation or partnership for federal income
tax purposes,
an estate whose income is subject to United States federal income
tax regardless
of its source, or a trust if a court within the United States is
able to
exercise primary supervision over the administration of such trust,
and one or
more such U.S. Persons have the authority to control all
substantial decisions
of such trust (or, to the extent provided in applicable Treasury
Regulations,
certain trusts in existence on August 20, 1996 which are eligible
to elect to be
treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates
which is allocated to any Certificate. As of any date of
determination, (a) 1%
of all Voting Rights shall be allocated to the 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-A-8 Certificates, (d) 1% of all Voting
Rights shall
be allocated to the Holders of the Class 1-A-14 Certificates, (e)
1% of all
Voting Rights shall be allocated to the Holders of the Class 2-A-13
Certificates, (f) 1% of all Voting Rights shall be allocated to the
Holders of
the Class 30-IO Certificates and (g) 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.
Washington Mutual: Washington Mutual Bank, in its capacity as a
Servicer
under the Washington Mutual Servicing Agreement.
Washington Mutual Servicing Agreement: Collectively, (i) that
certain
Mortgage Loan Purchase and Sale Agreement (Amended and Restated),
dated as of
July 1, 2003, by and among Washington Mutual Bank fsb, Washington
Mutual and
BANA (as successor in interest to BAMCC) as amended by (a) that
certain Master
Assignment, Assumption and Recognition Agreement (the "MAAR"),
dated as of July
1, 2004, by and among BAMCC, BANA and Washington Mutual and (b)
that certain
Regulation AB Amendment to the Mortgage Loan Purchase and Sale
Agreement, dated
as of January 1, 2006, by and among Washington Mutual Bank fsb,
Washington
Mutual and BANA, (ii) the Servicing Agreement (Amended and
Restated), dated as
of July 1, 2003, by and between BANA and Washington Mutual, as
amended by (a)
the MAAR and (b) that certain Regulation AB Amendment to the
Servicing
Agreement, dated as of January 1, 2006, by and between Washington
Mutual and
BANA, (iii) that certain Term Sheet, dated as of May 24, 2006, by
and between
BANA and Washington Mutual, (iv) that certain Term Sheet, dated as
of June 21,
2006, by and between BANA and Washington Mutual, and (v) that
certain Term
Sheet, dated as of August 24, 2006, by and between BANA and
Washington Mutual
and (iv) the Assignment, Assumption and Recognition Agreement,
dated September
28, 2006, by and among BANA, the Depositor, the Trustee, the Master
Servicer and
Washington Mutual.
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Wells Fargo Bank: Wells Fargo Bank, N.A., in its capacity as
Servicer under
the Wells Fargo Servicing Agreement.
Wells Fargo Servicing Agreement: Each of (a) collectively, (i) that
certain
Second Amended and Restated Master Seller's Warranties and
Servicing Agreement,
dated as of May 1, 2006, by and between BANA and Wells Fargo Bank,
(ii) that
certain Second Amended and Restated Master Mortgage Loan Purchase
Agreement,
dated as of May 1, 2006, by and between BANA and Wells Fargo Bank,
(iii) that
certain Assignment and Conveyance Agreement, dated as of May 24,
2006, and (iv)
the Assignment, Assumption and Recognition Agreement, dated
September 28, 2006,
by and among BANA, the Depositor, the Trustee, the Master Servicer
and Wells
Fargo Bank, and (b) collectively, (i) that certain Servicing
Agreement, dated as
of July 1, 2006, by and between BANA and Wells Fargo Bank and (ii)
the
Assignment, Assumption and Recognition Agreement, dated September
28, 2006, by
and among BANA, the Depositor, the Trustee, the Master Servicer and
Washington
Mutual.
Yield Maintenance Agreement: Any of the Class 1-A-1 Yield
Maintenance
Agreement, the Class 1-A-7 Yield Maintenance Agreement or the Class
1-A-13 Yield
Maintenance Agreement.
Yield Maintenance Agreement Payment: Any of a Class 1-A-1 Yield
Maintenance
Agreement Payment, a Class 1-A-7 Yield Maintenance Agreement
Payment or a Class
1-A-13 Yield Maintenance Agreement Payment.
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 BANA Servicing Agreement and the Mortgage Loan Purchase
Agreement, including
the rights of the Depositor as assignee of the Sponsor with respect
to the
Sponsor's rights under the Servicing Agreements (other than the
BANA 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
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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 Trustee, or a 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 U.S. Bank
National
Association, as trustee for holders of Banc of America Funding
Corporation
Mortgage Pass-Through Certificates, Series 2006-5, without
recourse," with
all necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such
endorsement being
sufficient to transfer all right, title and interest of the party
so
endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note)
and, in the case of any Mortgage Loan originated in the State of
New York
documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if
applicable,
the consolidated Mortgage Note and the consolidated Mortgage;
(ii) except as provided below and other than with respect to the
Mortgage Loans purchased by the Sponsor from Wells Fargo Bank, the
original
recorded Mortgage with evidence of a recording thereon, or if any
such
Mortgage has not been returned from the applicable recording office
or has
been lost, or if such public recording office retains the original
recorded
Mortgage, a copy of such Mortgage certified by the applicable
Servicer
(which may be part of a blanket certification) as being a true and
correct
copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "U.S. Bank National Association,
as
trustee for the holders of Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2006-5" (which may be included in
a
blanket assignment or assignments), together with, except as
provided below
and other than with respect to the Mortgage Loans purchased by the
Sponsor
from Wells Fargo Bank, originals of all interim recorded
assignments of
such mortgage or a copy of such interim assignment certified by the
applicable Servicer (which may be part of a blanket certification)
as being
a true and complete copy of the original recorded intervening
assignments
of Mortgage (each such assignment, when duly and validly completed,
to be
in recordable form and sufficient to effect the assignment of and
transfer
to the assignee thereof, under the Mortgage to which the assignment
relates); provided that, if the related Mortgage has not been
returned from
the applicable public recording office, such Assignment of Mortgage
may
exclude the information to be provided by the recording office; and
provided, further, if the related Mortgage has been recorded in the
name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no
Assignment of Mortgage in favor of the Trustee will be required to
be
prepared or delivered and instead, the Master Servicer shall
enforce the
obligations of the applicable Servicer to take all actions as are
necessary
to cause the Trust to be shown as the owner of the related Mortgage
Loan on
the records of MERS for purposes of the
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system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension agreements, if any, with evidence of recording thereon,
if any;
(v) other than with respect to the Mortgage Loans purchased by the
Sponsor from Wells Fargo Bank, any of (A) the original or duplicate
original mortgagee title insurance policy and all riders thereto,
(B) a
title search showing no lien (other than standard exceptions) on
the
Mortgaged Property senior to the lien of the Mortgage or (C) an
opinion of
counsel of the type customarily rendered in the applicable
jurisdiction in
lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording
indicated thereon, or, if the lease is in the process of being
recorded, a
photocopy of the lease, certified by an officer of the respective
prior
owner of such Mortgage Loan or by the applicable title insurance
company,
closing/settlement/escrow agent or company or closing attorney to
be a true
and correct copy of the lease transmitted for recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock (other
than
with respect to any Mortgage Loan secured by Cooperative Stock
purchased by
the Sponsor from Wells Fargo Bank), the originals of the following
documents or instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative Lease;
(D) The executed Recognition Agreement;
(E) The executed assignment of Recognition Agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete
and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
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provided, however, that on the Closing Date, with respect to item
(iii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the Trustee or a Custodian on behalf of
the Trustee,
as the case may be, a copy of such Assignment of Mortgage in blank
rather than
in the name of the Trustee and has caused the applicable Servicer
to retain the
completed Assignment of Mortgage for recording as described below,
unless such
Mortgage has been recorded in the name of MERS or its designee. In
addition, if
the Depositor is unable to deliver or cause the delivery of any
original
Mortgage Note due to the loss of such original Mortgage Note, the
Depositor may
deliver a copy of such Mortgage Note, together with a lost note
affidavit, and
shall thereby be deemed to have satisfied the document delivery
requirements of
this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A)
the Mortgage, (B) all interim recorded assignments, (C) all
assumption,
modification, consolidation or extension agreements, if any, or (D)
the lender's
title policy, if any, (together with all riders thereto), 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
related
Servicer, the Sponsor 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 Trustee or a Custodian on
behalf of the
Trustee, as the case may be, 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 Trustee or a
Custodian, on behalf
of the Trustee, as the case may be, (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 applicable
Servicer to the Trustee or a Custodian on the Trustee's behalf, as
the case may
be. 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.
Upon discovery by the Depositor or notice from Wells Fargo Bank,
the Master
Servicer, the Securities Administrator or Trustee that a Document
Transfer Event
has occurred, the Depositor shall, with respect to Mortgage Loans
purchased by
the Sponsor from Wells Fargo Bank, deliver or cause to be delivered
to the
Trustee or a Custodian, on behalf of the Trustee, within 60 days
copies (which
may be in electronic form mutually agreed upon by the Depositor and
the Trustee
or such Custodian) of the following additional documents or
instruments to the
Mortgage File with respect to each such Mortgage Loan; provided,
however, that
originals of
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such documents or instruments shall be delivered to the Trustee or
a Custodian
on behalf of the Trustee, as applicable, if originals are required
under the law
in which the related Mortgaged Property is located in order to
exercise all
remedies available to the Trust under applicable law following
default by the
related Mortgagor:
(1) other than if the related Mortgage has been recorded in the
name
of MERS or its designee, originals of all interim recorded
assignments of such
mortgage or a copy of such interim assignments certified by Wells
Fargo Bank
(which may be part of a blanket certification) as being a true and
complete copy
of the original recorded intervening assignments of Mortgage (each
such
assignment, when duly and validly completed, to be in recordable
form and
sufficient to effect the assignment of and transfer to the assignee
thereof,
under the Mortgage to which the assignment relates);
(2) the original or a certified copy of the lender's title
insurance
policy;
(3) the original Mortgage with evidence of recording thereon, and
the
original recorded power of attorney, if the Mortgage was executed
pursuant to a
power of attorney, with evidence of recording thereon or, if such
Mortgage or
power of attorney has been submitted for recording but has not been
returned
from the applicable public recording office, has been lost or is
not otherwise
available, a copy of such Mortgage or power of attorney, as the
case may be,
certified to be a true and complete copy of the original submitted
for
recording; and
(4) for each Mortgage Loan secured by Cooperative Stock, the
originals
of the following documents or instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative Lease;
(D) The executed Recognition Agreement;
(E) The executed assignment of Recognition Agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete
and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
With respect to each Mortgage Loan, as promptly as practicable
subsequent
to such transfer and assignment, the Master Servicer shall (except
for any
Mortgage which has been recorded in the name of MERS or its
designee) enforce
the obligations of the related Servicer pursuant to the related
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
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time period required in the applicable Servicing Agreement and (II)
at the
Depositor's expense, cause to be delivered for recording in the
appropriate
public office for real property records the Assignments of the
Mortgages to the
Trustee, except that, with respect to any Assignment of a Mortgage
as to which
the related Servicer has not received the information required to
prepare such
assignment in recordable form, such 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 applicable
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
Trustee, or a Custodian on the Trustee's behalf, will cause the
applicable
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 Trustee or Custodian of the Mortgage
Loans.
Subject to the provisions of the following paragraph, the Trustee
declares that
it, or a Custodian as its agent, will hold the documents referred
to in Section
2.01 and the other documents delivered to it or a Custodian as its
agent, as the
case may be, constituting the Mortgage Files, and that it will hold
such other
assets as are included in the Trust Estate delivered to it, in
trust for the
exclusive use and benefit of all present and future
Certificateholders. Upon
execution and delivery of this document, the Trustee shall deliver
or cause a
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
Trustee shall review, or cause a Custodian, on behalf of the
Trustee, to 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 Trustee
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or a Custodian, as the case may be, may conclusively rely on the
purported
genuineness of any such document and any signature thereon.
If, in the course of such review, the Trustee, or a Custodian on
its
behalf, 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, a Custodian or
the
Securities Administrator discovers a breach by a Servicer, UBS, the
Sponsor or
the Depositor of any representation, warranty or covenant under the
Servicing
Agreements, the Mortgage Loan Purchase Agreement or this Agreement,
as the case
may be, in respect of any Mortgage Loan and such breach materially
adversely
affects the interest of the Certificateholders in the related
Mortgage Loan
(provided that any such breach that causes the Mortgage Loan not to
be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code shall
be deemed to materially and adversely affect the interests of the
Certificateholders), then such party shall promptly so notify the
Master
Servicer, the Sponsor, such Servicer or UBS, as applicable, the
Securities
Administrator, the Trustee and the Depositor of such failure to
meet the
requirements of Section 2.01 or of such breach and request that the
applicable
Servicer, UBS, the Sponsor or the Depositor, 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 Trustee receives written notice that
the
Depositor, the Sponsor or the applicable Servicer or UBS, as the
case may be,
has not delivered such missing document or cured such defect or
breach in all
material respects during such period, the Trustee, on behalf of the
Trust, shall
enforce the applicable Servicer's, UBS', Sponsor's or Depositor's
obligation, as
the case may be, under the applicable Servicing Agreement, the
Mortgage Loan
Purchase Agreement or this Agreement, as the case may be, and cause
the
applicable Servicer, UBS, the Sponsor or the Depositor, as the case
may be, to
either (a) other than in the case of Washington Mutual and UBS,
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 Trustee's review (or a
Custodian's
review on its behalf) 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
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Section 2.01 appear on their face to have been executed and relate
to the
applicable Mortgage Loans identified in the related Mortgage Loan
Schedule based
solely upon the review of items (i) and (xi) in the definition of
Mortgage Loan
Schedule. Neither the Trustee nor any Custodian shall have any
responsibility
for determining whether any document is valid and binding, whether
the text of
any assignment or endorsement is in proper or recordable form,
whether any
document has been recorded in accordance with the requirements of
any applicable
jurisdiction, or whether a blanket assignment is permitted in any
applicable
jurisdiction.
If the Trustee receives written notice from the Depositor, the
Master
Servicer or the Securities Administrator of a breach of any
representation or
warranty of a related Servicer, UBS or the Sponsor, the Trustee, on
behalf of
the Trust, shall enforce the rights of the Trust under the
Servicing Agreements,
the Mortgage Loan Purchase Agreement and this Agreement for the
benefit of the
Certificateholders. If the Trustee receives written notice from the
Depositor,
the Master Servicer or the Securities Administrator of a breach of
the
representations or warranties with respect to the Mortgage Loans
set forth in a
Servicing Agreement, the Trustee, on behalf of the Trust, shall
enforce the
right of the Trust to be indemnified for such breach of
representation or
warranty. In addition, if the Trustee receives written notice from
the
Depositor, the Master Servicer or the Securities Administrator of a
breach of a
representation with respect to a Mortgage Loan set forth in clauses
(k) or (o)
of paragraph 3 or clauses (f) and (oo) of paragraph 4 of the
Mortgage Loan
Purchase Agreement that occurs as a result of a violation of an
applicable
predatory or abusive lending law, the Trustee, on behalf of the
Trust, shall
enforce the right of the Trust to reimbursement by the Sponsor 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 applicable Servicer
does not so
reimburse the Trust. It is understood and agreed that, except for
any
indemnification provided in the Servicing Agreements and the
payment of any
Reimbursement Amount, the obligation of a Servicer, UBS, the
Sponsor or the
Depositor to cure or to repurchase (or, other than in the case of
Washington
Mutual and UBS, to substitute for) 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
a Servicer, UBS, the Sponsor or the Depositor in respect of such
omission,
defect or breach available to the Trustee on behalf of the Trust
and 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 Sponsor's knowledge or as to which the Sponsor 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 interest of the
Certificateholders in the
related Mortgage Loan then, notwithstanding the Sponsor'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 Trustee or a
Custodian on
the Trustee's behalf and shall inure to the
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benefit of the Certificateholders notwithstanding any restrictive
or qualified
endorsement or assignment. It is understood and agreed that the
obligations of
the Sponsor 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 each Servicer or UBS with
respect to
the applicable Mortgage Loans in the related Servicing Agreement,
which have
been assigned to the Trustee hereunder, were made as of the date
specified in
such 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 a Servicer or UBS under the related Servicing Agreement
and (ii) a
representation or warranty of the Sponsor under the Mortgage Loan
Purchase
Agreement, the only right or remedy of the Trustee or of any
Certificateholder
shall be the Trustee's right, on behalf of the Trust, to enforce
the obligations
of the applicable Servicer or UBS under any applicable
representation or
warranty made by it. It is hereby acknowledged that the Sponsor
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 applicable Servicer or UBS in the applicable
Servicing
Agreement, without regard to whether such Servicer or UBS fulfills
its
contractual obligations in respect of such representation or
warranty. It is
hereby further acknowledged 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 applicable
Servicer, the
Sponsor or the Depositor, as the case may be, shall deliver to the
Trustee (or a
Custodian on behalf of the Trustee), for the benefit of the
Certificateholders,
the documents and agreements 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
Depositor, the Sponsor or a Servicer (other than Washington Mutual)
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 any
Custodian. Upon
such substitution of a Mortgage Loan by the Depositor, the Sponsor
or a Servicer
(other than Washington Mutual), each Substitute Mortgage Loan shall
be subject
to the terms of this Agreement in all respects and the Depositor or
the Sponsor,
as the case may be, shall be deemed to have made to the Trustee
with respect to
such Substitute Mortgage Loan, as of the date of substitution,
similar
representations and warranties to those made with respect to the
Defective
Mortgage Loan and the applicable Servicer shall be deemed to have
made to the
Trustee with respect to such Substitute Mortgage Loan, as of the
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date of substitution, the mortgage loan representations and
warranties made
pursuant to the applicable 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 release,
or shall
direct a Custodian to release, the Mortgage File relating to such
Defective
Mortgage Loan to 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 Depositor, the Sponsor or a Servicer
(other than
Washington Mutual) 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 Trustee shall retain or shall cause a Custodian to retain, as
applicable, 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 Trustee or a Custodian on
behalf of the
Trustee, as the case may be, 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.
Neither the Trustee nor any Custodian shall be under any 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 Trustee or a Custodian on its behalf, as
applicable,
shall only be responsible for confirming that a title search or
opinion of
counsel has been provided for such Mortgage Loan.
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer. 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 corporation duly organized and validly
existing in good standing under the laws of the State of New York
and has
all licenses necessary
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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 or
a Custodian
on the Trustee's behalf and shall inure to the benefit of the
Certificateholders.
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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.
(iv) Each Mortgage Loan is a "qualified mortgage" within the
meaning
of Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2.
It is understood and agreed that the representations and warranties
set
forth in this Section 2.04 shall survive delivery of the respective
Mortgage
Files to the Trustee or the related Custodian and shall inure to
the benefit of
the Trustee, 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 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 a
breach of the representation that each Mortgage Loan is 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 relates to the
representation that
each Mortgage Loan is 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
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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
Trust and 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-1, Class
1-A-7, Class 1-A-13, Class 2-A-R, Class 30-IO and Class 30-PO
Certificates), the
Class 1-A-1 Interest, the Class 1-A-7 Interest, the Class 1-A-13
Interest, 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
Intermediate Lower-Tier Interests as classes of "regular interests"
and the
Class ILR Interest as the single class of "residual interest" in
the
Intermediate Lower-Tier REMIC for the purposes of Code Sections
860G(a)(1) and
860G(a)(2), respectively 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
Intermediate Lower-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
Intermediate Lower-Tier REMIC and the Lower-Tier REMIC is the
Distribution Date
after the maturity of the latest maturing Mortgage Loan.
Section 2.08 Execution and Delivery of Certificates. (a) The
Trustee (i) in
exchange for the Mortgage Loans and all other assets included in
the definition
of "Trust Estate," receipt of which is hereby acknowledged,
acknowledges the
issuance of and hereby declares that it holds the Uncertificated
Lower-Tier
Interests on behalf of the Intermediate Lower-Tier REMIC and the
Certificateholders and that it holds the Uncertificated
Intermediate Lower-Tier
Interests on behalf of the Upper-Tier REMIC and the
Certificateholders and (ii)
in exchange for the Uncertificated Intermediate Lower-Tier
Interests, has caused
the Securities Administrator to execute and deliver to or upon the
order of the
Depositor, Certificates in authorized Denominations which, together
with the
Uncertificated Intermediate Lower-Tier Interests and the
Uncertificated
Lower-Tier Interests, evidence ownership of the entire Trust
Estate.
Section 2.09 Establishment of the Trust.
The Depositor does hereby establish, pursuant to the further
provisions of
this Agreement and the laws of the State of New York, an express
trust to be
known, for convenience, as "Banc of America Funding 2006-5 Trust"
and does
hereby appoint U.S. Bank National Association as Trustee in
accordance with the
provisions of this Agreement.
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Section 2.10 Purpose and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is to
engage in
the following activities:
(a) to acquire and hold the Mortgage Loans and the other assets of
the
Trust Estate and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for
the
Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or
connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such
other
activities as may be required in connection with conservation of
the Trust
Estate and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities.
Neither the Trustee nor the Securities Administrator shall cause
the trust to
engage in any activity other than in connection with the foregoing
or other than
as required or authorized by the terms of this Agreement (or those
ancillary
thereto) while any Certificate is outstanding, and this Section
2.10 may not be
amended without the consent of the Certificateholders evidencing
51% or more of
the aggregate voting rights of the Certificates.
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 Servicers to service and administer their
respective
Mortgage Loans in accordance with the terms of the applicable
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 each 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 each Servicer and shall cause each Servicer
to perform
and observe the covenants, obligations and conditions to be
performed or
observed by such Servicer under the applicable Servicing Agreement.
The Master
Servicer shall independently and separately monitor each Servicer's
servicing
activities with respect to each related 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
Servicers' and the
Master Servicer's records, and
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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 Servicers to the
Master Servicer
Custodial Account pursuant to the applicable Servicing Agreements.
Continuously from the date hereof until the termination of the
Trust, the
Master Servicer shall enforce the obligations of the Servicers 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 applicable 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 Servicers. (a) The Master Servicer shall
be
responsible for reporting to the Trustee, the Securities
Administrator and the
Depositor the compliance by each Servicer with its duties under the
related
Servicing Agreement. In the review of each Servicer's activities,
the Master
Servicer may rely upon an officer's certificate of the Servicer
with regard to
such Servicer's compliance with the terms of its Servicing
Agreement. In the
event that the Master Servicer, in its judgment, determines that a
Servicer
should be terminated in accordance with its Servicing Agreement, or
that a
notice should be sent pursuant to such 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 Trust and the
Certificateholders, shall enforce the obligations of each Servicer
under the
related Servicing Agreement, and shall, in the event that a
Servicer fails to
perform its obligations in accordance with the related Servicing
Agreement,
subject to the preceding paragraph, terminate the rights and
obligations of such
Servicer thereunder and act as successor Servicer of the related
Mortgage Loans
under the applicable Servicing Agreement or cause the Trustee to
enter into 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 Servicing Agreements 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 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,
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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 a 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 any
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
such Servicer
under the related Servicing Agreement 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
related 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 each Servicer to comply with
the
remittance requirements and other obligations set forth in the
related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability
for the representations and warranties of the Servicer, if any,
that it
replaces.
(f) Subject to the conditions set forth in this Section 3.02(f),
the Master
Servicer is permitted to utilize one or more Subcontractors to
perform certain
of its obligations hereunder. The Master Servicer shall promptly
upon request
provide to the Depositor a written description (in form and
substance
satisfactory to the Depositor) of the role and function of each
Subcontractor
utilized by the Master Servicer, specifying (i) the identity of
each such
Subcontractor that is a Servicing Function Participant and (ii)
which elements
of the Servicing Criteria will be addressed in Assessments of
Compliance
provided by each Servicing Function Participant. As a condition to
the
utilization by the Master Servicer of any Servicing Function
Participant, the
Master Servicer shall cause any such Servicing Function Participant
for the
benefit of the Depositor to comply with the provisions of Section
3.21 of this
Agreement to the same extent as if such Servicing Function
Participant were the
Master Servicer. The Master Servicer shall be responsible for
obtaining from
each such Servicing Function Participant and delivering to the
applicable
Persons any Assessment of Compliance and related Attestation Report
required to
be delivered by such Servicing Function Participant under Section
3.21, in each
case as and when required to be delivered.
Notwithstanding the foregoing, if the Master Servicer engages a
Subcontractor in connection with the performance of any of its
duties under this
Agreement, the Master Servicer shall be responsible for determining
whether such
Subcontractor is an Additional Servicer.
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The Master Servicer shall indemnify the Depositor, the Sponsor, the
Trustee, the Custodian and the Securities Administrator and any of
their
directors, officers, employees or agents and hold them harmless
against any and
all claims, losses, damages, penalties, fines, forfeitures,
reasonable and
necessary legal fees and related costs, judgments, and any other
costs, fees and
expenses that any of them may sustain in any way related to a
breach of the
Master Servicer's obligation set forth in the preceding paragraph
or the failure
of the Master Servicer to perform any of its obligations under this
Section
3.02(f), Section 3.20, Section 3.21 or Section 3.22.
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 each Servicer to
provide in
accordance with the related 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 related
Servicer. In
fulfilling such request for access, the Master Servicer shall not
be responsible
to determine the sufficiency of any information provided by such
Servicer.
Nothing in this Section 3.04 shall limit the obligation of the
Master Servicer
and the related Servicer to observe any applicable law and the
failure of the
Master Servicer or the related 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 any Servicer (to the
extent such
action is prohibited under the applicable 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 such Servicer, would have been covered thereunder. The Master
Servicer shall
use its best reasonable efforts to cause each Servicer (to the
extent required
under the
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related 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 related Servicing Agreement,
as applicable.
The Master Servicer shall not, and shall not permit any Servicer
(to the extent
required under the related 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
related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer (to
the extent required under the related Servicing Agreement) to
present, on behalf
of the Trust, 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 any
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. (a) 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.
(b) 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.
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Section 3.08 Servicer Custodial Accounts and Escrow Accounts. (a)
The
Master Servicer shall enforce the obligation of each Servicer to
establish and
maintain a Servicer Custodial Account in accordance with the
applicable
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 related 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 a 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 applicable Servicing Agreement in the case of any 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
related
Servicer Custodial Account for purposes required or permitted by
this Agreement.
(b) The Master Servicer shall also enforce the obligation of each
Servicer
to establish and maintain a Buy-Down Account in accordance with the
applicable
Servicing Agreement, with records to be kept with respect thereto
on a Mortgage
Loan by Mortgage Loan basis, into which accounts any Buy-Down Funds
shall be
deposited within 48 hours (or as of such other time specified in
the related
Servicing Agreement) of receipt thereof. The Master Servicer is
hereby
authorized to make withdrawals from and deposits to the related
Buy-Down Account
for purposes required or permitted by this Agreement. In addition,
the Master
Servicer shall enforce the obligation of each Servicer to withdraw
from the
Buy-Down Account and deposit in immediately available funds in the
Servicer
Custodial Account an amount which, when added to such Mortgagor's
payment, will
equal the full monthly payment due under the related Mortgage Note.
(c) To the extent required by the related Servicing Agreement and
by the
related Mortgage Note and not violative of current law, the Master
Servicer
shall enforce the obligation of each Servicer to establish and
maintain one or
more escrow accounts (for each Servicer, collectively, the "Escrow
Account") and
deposit and retain therein all collections from the Mortgagors (or
Advances by
such 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 a 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; Reserved Funds; and Yield
Maintenance
Agreements. (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 Servicers 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
applicable
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, five (5) calendar days preceding each Distribution Date (or,
if such
calendar day is not a Business Day, the succeeding Business Day)
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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. 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) (i) The Securities Administrator shall establish and maintain
the Class
1-A-1 Reserve Fund, the Class 1-A-7 Reserve Fund and the Class
1-A-13 Reserve
Fund, held in trust for the benefit of the Holders of the Class
1-A-1, Class
1-A-7 and Class 1-A-13 Certificates, respectively. The Securities
Administrator
shall deposit in the applicable Reserve Fund on the date received
by it the
related Yield Maintenance Agreement Payment, if any, 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 the
related Yield
Maintenance Agreement Payment, if any, received in respect of such
Distribution
Date and shall distribute such amount to the Class 1-A-1, Class
1-A-7 or Class
1-A-13 Certificates, as the case may be.
(ii) The Securities Administrator and the Trustee shall account for
the Reserve Funds and the Yield Maintenance Agreements and the
rights with
respect thereto as, for federal income tax purposes, a "grantor
trust" as
described in Subpart E of Part I of Subchapter J of the Code and
Treasury
Regulation Section 301.7701-4(c)(2) and not as assets of any REMIC
created
pursuant to this Agreement. The Securities Administrator shall
apply for a
taxpayer identification number on IRS Form SS-4 and any similarly
required
state or local forms or using any other acceptable method for all
tax
entities. The Securities Administrator shall furnish or cause to be
furnished to the Holders of the Class 1-A-1, Class 1-A-7 and Class
1-A-13
Certificates and shall file or cause to be filed IRS Form 1041 and
such
other forms as may be required by the Code and regulations
promulgated
thereunder and any similar state or local laws with respect to the
allocable shares of income and expenses with respect to the assets
of the
grantor trust at the time and in the manner required by the Code
and
regulations promulgated thereunder and any similar state or local
laws. The
beneficial owners of the Class 1-A-1 Yield Maintenance Agreement
and the
Class 1-A-1 Reserve Fund are the Holders of the Class 1-A-1
Certificates,
the beneficial owners of the Class 1-A-7 Yield Maintenance
Agreement and
the Class 1-A-7 Reserve Fund are the Holders of the Class 1-A-7
Certificates and the beneficial owners of the Class 1-A-13 Yield
Maintenance Agreement and the Class 1-A-13 Reserve Fund are the
Holders of
the Class 1-A-13 Certificates. Each of the Class 1-A-1, Class 1-A-7
and
Class 1-A-13 Reserve Funds is an "outside reserve fund" within the
meaning
of Treasury Regulations Section 1.860G-2(h) that is owned by the
holders of
the Class 1-A-1, Class 1-A-7 and Class 1-A-13 Certificates,
respectively.
(iii) Any amounts in the applicable Reserve Fund paid by the
Securities Administrator pursuant to this Section 3.09(d) to the
Class
1-A-1, Class 1-A-7 and Class 1-A-13 Certificates shall be accounted
for by
the Securities Administrator as amounts paid to the Class 1-A-1,
Class
1-A-7 and Class 1-A-13 Certificates, respectively, from, for
federal income
tax purposes, a grantor trust as described in Subpart E of Part I
of
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Subchapter J of the Code and Treasury Regulation Section
301.7701-4(c)(2)
unless required otherwise by applicable law or an applicable taxing
authority. The Securities Administrator shall prepare, sign and
file, all
of the tax returns in respect of such grantor trusts. In addition,
the
Securities Administrator shall account for the right of the Class
1-A-1,
Class 1-A-7 and Class 1-A-13 Certificates to receive amounts from
the
applicable Reserve Fund as rights in limited recourse interest rate
cap
contracts written by the Counterparty in favor of the Class 1-A-1,
Class
1-A-7 and Class 1-A-13 Certificates. Thus, for tax purposes, each
Class
1-A-1, Class 1-A-7 and Class 1-A-13 Certificates shall be treated
as
representing not only ownership of a "regular interest" in the
Upper-Tier
REMIC within the meaning of Code Section 860G(a)(1), but also
ownership of
an interest in a notional principal contract.
(iv) For federal tax return and information reporting purposes, the
right of the Holders of the Class 1-A-1, Class 1-A-7 and Class
1-A-13
Certificates to receive payments under the applicable Yield
Maintenance
Agreement shall be assumed to have a value of zero as of the
Closing Date
unless and until required otherwise by an applicable taxing
authority.
(e) 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 in the Master Servicer Custodial Account the
following
payments and collections remitted to the Master Servicer by each
Servicer from
its respective Servicer Custodial Account pursuant to the related
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(f) 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 applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant to
the
related Servicing Agreement (or, if applicable, by the Master
Servicer or
the Trustee pursuant to
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Section 3.19 or the Trustee pursuant to Section 8.01) and any
Compensating
Interest paid by the applicable Servicer pursuant to the related
Servicing
Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts and
all
Reimbursement Amounts to the extent received by the Master
Servicer;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to
Section
3.08; and
(x) 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.
(f) 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 date on
which the Master Servicer is required to remit to the Securities
Administrator
pursuant to Section 3.09(b) 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 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.
(g) 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.
(h) 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
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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.
(i) The Securities Administrator shall designate each of the
Intermediate
Lower-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 Intermediate
Lower-Tier
Certificate Sub-Account, the Lower-Tier Distribution Amount. The
Securities
Administrator shall then immediately, from funds available in the
Intermediate
Lower-Tier Certificate Sub-Account, be deemed to deposit into the
Upper-Tier
Certificate Sub-Account, the Intermediate Lower-Tier Distribution
Amount.
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 Servicers 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 applicable 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 Servicers (to the extent not previously retained
by
them), the Servicing Fee to which they are entitled pursuant to the
Servicing Agreements and to pay itself any Master Servicer
Custodial
Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee any
amounts due to the Securities Administrator and the Trustee under
this
Agreement (including, but not limited to, all amounts provided for
under
Section 3.02, Section 3.07, Section 8.05 and Section 9.11, other
than the
amounts provided for in the first sentence of Section 9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the related
Servicing
Agreement (or in the case of itself or the Trustee, pursuant to
Section
3.19 or Section 8.01, as applicable), such right of reimbursement
pursuant
to this clause (iii) being limited first to amounts received on the
Mortgage Loans serviced by such 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 such Servicer (or,
if
applicable, the Master Servicer or the Trustee) in respect of which
any
such Advance was made;
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(iv) to reimburse the Servicers (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
such
Servicer (of, if applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicers 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
2-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.
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Section 3.12 Maintenance of Hazard Insurance and Other Insurance.
(a) For
each Mortgage Loan, the Master Servicer shall enforce any
obligation of the
Servicers under the related Servicing Agreements 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 related
Servicing Agreements. 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 applicable 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.
(b) Pursuant to Sections 3.08 and 3.09, any amounts collected by
the Master
Servicer, or by any 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 applicable
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 any 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 such
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 applicable Servicing
Agreement)
cause the related Servicer to, prepare and present on behalf of the
Trust 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 a
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 applicable Servicing Agreement and to
the extent
Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer
shall cause the Servicers to enforce such clauses in accordance
with the
applicable 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 applicable Servicing Agreement, and, as a consequence, a
Mortgage Loan is
assumed, the original Mortgagor may be released from liability in
accordance
with the applicable Servicing Agreement.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO
Property. (a)
The Master Servicer shall cause each Servicer (to the extent
required under the
related Servicing Agreement) to foreclose upon or otherwise
comparably convert
the ownership of Mortgaged
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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 applicable
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 Servicers, to the extent provided in
the
applicable 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 applicable Servicing Agreement, cause the
applicable Servicer to
sell any REO Property as expeditiously as possible and in
accordance with the
provisions of this Agreement and the related Servicing Agreement,
as applicable.
Pursuant to its efforts to sell such REO Property, the Master
Servicer shall
cause the applicable Servicer to protect and conserve such REO
Property in the
manner and to the extent required by the applicable 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 related Servicer to dispose of such Mortgaged
Property within
the time period specified in the applicable 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
related
Servicing Agreement, cause the applicable Servicer to deposit all
funds
collected and received in connection with the operation of any REO
Property in
the Servicer Custodial Account.
(d) The applicable 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 applicable Servicer as provided
above shall
be deposited in the related Servicer Custodial Account on or prior
to the
Determination Date in the month following receipt
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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 related 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 Securities Administrator 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 related Servicer of a notification that payment in full will be
escrowed in
a manner customary for such purposes, the Master Servicer or the
related
Servicer will immediately notify the Trustee (or, at the direction
of the
Trustee, a Custodian) by delivering, or causing to be delivered,
two copies (one
of which will be returned to the related Servicer with the Mortgage
File) of a
Request for Release (which may be delivered in an electronic format
acceptable
to the Trustee and the Master Servicer or the related Servicer).
Upon receipt of
such request, the Trustee or a Custodian, as applicable, shall
within seven (7)
Business Days release the related Mortgage File to the Master
Servicer or the
related Servicer. The Trustee shall at the Master Servicer's or the
related
Servicer's direction execute and deliver to the Master Servicer or
the related
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 related 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 applicable
Servicer's
obligation under the related Servicing Agreement
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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 Trustee or a
Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the
direction of the
Trustee, a 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 related Servicer.
Subject to the
further limitations set forth below, the Master Servicer or the
applicable
Servicer shall cause the Mortgage Files so released to be returned
to the
Trustee or a Custodian, as applicable, when the need therefor no
longer exists,
unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in
the related Servicer Custodial Account, in which case such Servicer
shall
deliver to the Trustee or a Custodian, as applicable, a Request for
Release,
signed by a Servicing Officer.
If the Master Servicer or any related 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
any related 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 each Servicer to
transmit to the
Trustee (or a Custodian on behalf of the Trustee) as required by
this Agreement
and the Servicing Agreements 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 related Servicer or which otherwise are collected by the
Master Servicer
or the related 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
related 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
any Servicer
Custodial Account, shall be held by the Master Servicer or the
related Servicer
for and on behalf of the Trustee and shall be and remain the sole
and exclusive
property of the Trustee on behalf of the Trust, subject to the
applicable
provisions of this Agreement and the related Servicing Agreement.
The Master
Servicer also agrees that it shall not, and shall enforce any
requirement under
the related Servicing Agreement that the related Servicer shall
not, knowingly
create, incur or subject any Mortgage File or any funds that are
deposited in
any Master Servicer Custodial Account, any Servicer Custodial
Account, the
Certificate Account or any Escrow Account, or any funds that
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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 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 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 Advances. The Master Servicer shall enforce the
obligations of
each Servicer to make a Periodic Advance in accordance with the
applicable
Servicing Agreement. A Servicer shall be entitled to be reimbursed
from the
applicable Servicer Custodial Account for all Advances of its own
funds made
pursuant to the related 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 a
Servicer on
each applicable Advance Date no later than the related Remittance
Date. If a
Servicer fails to make any required Periodic Advance pursuant to
the related
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 on
which the Master Servicer is required to remit funds to the
Securities
Administrator pursuant to Section 3.09(b) 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 related 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 related Servicing Agreement) that such
Periodic Advance
would not be recoverable. If the Master Servicer is unable to make
a Periodic
Advance required to be made by it in accordance with this Section
3.19, the
Master Servicer shall immediately, and in no event later than 5:00
P.M. New York
time on the Business Day on which the Master Servicer is required
to remit funds
to the Securities Administrator pursuant to Section 3.09(b), give
written notice
thereof to the Trustee, the Securities Administrator and the
Depositor.
Section 3.20 Annual Statement as to Compliance. (a)Each of the
Master
Servicer and the Securities Administrator shall deliver, and shall
cause any
Additional Servicer engaged by it to deliver, or otherwise make
available to the
Depositor and the Securities Administrator (and the Securities
Administrator
will forward to the Trustee and each Rating Agency), no later than
March 15th of
each calendar year beginning in 2007, an Officer's Certificate
(each, together
with such similar certificate delivered by each Servicer as
described in Section
3.20(b), a "Compliance Statement"), signed by an officer of such
party, stating,
as to the signer thereof, that (a) a review of the activities of
such party
during the preceding calendar year or portion thereof and of
performance of such
party under this Agreement or such applicable agreement in case of
an Additional
Servicer has been made under such officers' supervision and (b) to
the best
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of such officer's knowledge, based on such review, such party has
fulfilled all
of its obligations under this Agreement or such applicable
agreement in case of
an Additional Servicer in all material respects throughout such
year, or, if
there has been a failure to fulfill any such obligation in any
material respect,
specifying each such failure known to such officer and the nature
and status
thereof. Such Compliance Statements shall contain no restrictions
or limitations
on its use. The obligations of the Master Servicer and the
Securities
Administrator under this Section apply to each entity that acted as
Master
Servicer or Securities Administrator, as applicable, during the
applicable
period, whether or not such entity is acting as Master Servicer or
Securities
Administrator at the time such Compliance Statement is required to
be delivered.
(b) In the event the Master Servicer or the Securities
Administrator is
terminated or resigns pursuant to the terms of this Agreement, such
party shall
provide, and shall use its reasonable efforts to cause any
Additional Servicer
that resigns or is terminated under any applicable servicing
agreement to
provide, a Compliance Statement pursuant to this Section 3.20 with
respect to
the period of time that the Master Servicer or the Securities
Administrator was
subject to this Agreement or such applicable agreement in the case
of an
Additional Servicer or the period of time that the Additional
Servicer was
subject to such other servicing agreement. The Master Servicer
shall enforce any
obligation of each Servicer, to the extent set forth in the related
Servicing
Agreement, to deliver to the Master Servicer a Compliance Statement
within the
time frame set forth in, and in such form and substance as may be
required
pursuant to, the related Servicing Agreement. The Master Servicer
shall include
such Compliance Statements of the Servicers with its own Compliance
Statement to
be submitted pursuant to this Section 3.20.
Section 3.21 Assessments of Compliance and Attestation Reports.
(a)Each of
the Master Servicer, the Securities Administrator and the
Custodian, each at its
own expense, shall deliver, and shall cause each Servicing Function
Participant
engaged by it to deliver, or otherwise make available to the
Depositor and the
Securities Administrator on or before March 15th of each calendar
year beginning
in 2007, a report regarding such party's assessment of compliance
with the
Relevant Servicing Criteria (each, together with such similar
report delivered
by each Servicer as described in Section 3.21(c), an "Assessment of
Compliance"),that contains (i) a statement by such party of its
responsibility
for assessing compliance with the Relevant Servicing Criteria, (ii)
a statement
that such party used the Relevant Servicing Criteria to assess
compliance with
the Relevant Servicing Criteria, (iii) such party's assessment of
compliance
with the Relevant Servicing Criteria as of and for the fiscal year
covered by
the Form 10-K required to be filed pursuant to Section 3.22(c),
including, if
there has been any material instance of noncompliance with the
Relevant
Servicing Criteria, a discussion of each such failure and the
nature and status
thereof and (iv) a statement that a registered public accounting
firm has issued
an attestation report on such party's assessment of compliance with
the Relevant
Servicing Criteria as of and for such period.
No later than February 1 of each fiscal year for the Trust for
which a 10-K
is required to be filed, the Master Servicer, the Securities
Administrator and
the Custodian shall each forward to the Securities Administrator
and the
Depositor the name of each Servicing Function Participant engaged
by it and what
Relevant Servicing Criteria will be addressed in the report on
assessment of
compliance prepared by such Servicing Function Participant. When
the Master
Servicer, the Securities Administrator and the Custodian (or any
Servicing
Function Participant
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engaged by them) submit their assessments to the Securities
Administrator and
the Depositor, such parties will also at such time include the
assessment (and
attestation pursuant to Section 3.21(b)) of each Servicing Function
Participant
engaged by it.
Promptly after receipt of such Assessments of Compliance, the
Securities
Administrator shall confirm that the Assessments of Compliance,
taken
individually address the Relevant Servicing Criteria for each party
as set forth
on Exhibit P and on any similar exhibit set forth in each Servicing
Agreement in
respect of each Servicer and notify the Depositor of any
exceptions. None of
such parties shall be required to deliver any such Assessments of
Compliance
until April 15 in any given year so long as it has received written
confirmation
from the Depositor that a Form 10-K is not required to be filed in
respect of
the Trust for the preceding calendar year. The Custodian and any
Servicing
Function Participant engaged by it shall not be required to deliver
or cause the
delivery of such Assessments of Compliance in any given year so
long as it has
received written confirmation from the Depositor that a Form 10-K
is not
required to be filed in respect of the Trust for the preceding
fiscal year.
(b) Each of the Master Servicer, the Securities Administrator and
the
Custodian, each at its own expense, shall cause, and shall cause
each Servicing
Function Participant engaged by it to cause, on or before March
15th of each
calendar year beginning in 2007, a registered public accounting
firm (which may
also render other services to the Master Servicer, the Securities
Administrator,
the Custodian or such other Servicing Function Participants, as the
case may be)
and that is a member of the American Institute of Certified Public
Accountants
to furnish a report (each, together with such similar report
delivered by each
Servicer as described in Section 3.21(c), an "Attestation Report")
to the
Securities Administrator and the Depositor, to the effect that (i)
it has
obtained a representation regarding certain matters from the
management of such
party, which includes an assertion that such party has complied
with the
Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted
by such firm in accordance with standards for attestation
engagements issued or
adopted by the Public Company Accounting Oversight Board, it is
expressing an
opinion as to whether such party's compliance with the Relevant
Servicing
Criteria was fairly stated in all material respects, or it cannot
express an
overall opinion regarding such party's assessment of compliance
with the
Relevant Servicing Criteria. In the event that an overall opinion
cannot be
expressed, such registered public accounting firm shall state in
such
Attestation Report why it was unable to express such an opinion.
Each such
related Attestation Report shall be made in accordance with Rules
1-02(a)(3) and
2-02(g) of the Commission's Regulation S-X. Such Attestation
Reports must be
available for general use and not contain restricted use language.
If requested
by the Depositor, such report shall contain or be accompanied by a
consent of
such accounting firm to inclusion or incorporation of such report
in the
Depositor's registration statement on Form S-3 relating to the
Offered
Certificates and the Form 10-K for the Trust.
Promptly after receipt of such Attestation Reports, the Securities
Administrator shall confirm that each Assessment of Compliance is
coupled with a
related Attestation Report and shall notify the Depositor of any
exceptions. The
Master Servicer shall include each such Attestation Report
furnished to it by
the Servicers with its own Attestation Report to be submitted to
the Securities
Administrator pursuant to this Section 3.21. None of the Master
Servicer, the
Securities Administrator or any Servicing Function Participant
engaged by such
parties shall be required to deliver or cause the delivery of such
Attestation
Reports until April
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15 in any given year so long as it has received written
confirmation from the
Depositor that a Form 10-K is not required to be filed in respect
of the Trust
for the preceding fiscal year. The Custodian and any Servicing
Function
Participant engaged by it shall not be required to deliver or cause
the delivery
of such Attestation Report in any given year so long as it has
received written
confirmation from the Depositor that a Form 10-K is not required to
be filed in
respect of the Trust for the preceding fiscal year.
(c) The Master Servicer shall enforce any obligation of each
Servicer, to
the extent set forth in the related Servicing Agreement, to deliver
to the
Master Servicer an Assessment of Compliance and related Attestation
Report
within the time frame set forth in, and in such form and substance
as may be
required pursuant to, the related Servicing Agreement. The Master
Servicer shall
include such Assessments of Compliance and Attestation Reports of
the Servicers
with its own Assessment of Compliance and related Attestation
Report to be
submitted pursuant to this Section 3.21.
(d) In the event the Master Servicer, the Custodian or the
Securities
Administrator is terminated or resigns pursuant to the terms of
this Agreement,
such party shall provide, and each such party shall cause any
Servicing Function
Participant engaged by it to provide, an Assessment of Compliance
pursuant to
this Section 3.21, coupled with an Attestation Report as required
in this
Section 3.21 with respect to the period of time that the Master
Servicer or the
Securities Administrator was subject to this Agreement.
Section 3.22 Reports to the 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 and file on behalf of the Trust any
Form 8-K, Form
10-D and Form 10-K required by the Exchange Act and the rules and
regulations of
the Commission thereunder, and the Master Servicer shall sign such
Forms on
behalf of the Trust. Notwithstanding the previous sentence, the
Depositor shall
file the Form 8-K in connection with the filing of this Agreement.
(b) Within 15 days after each Distribution Date (subject to
permitted
extensions under the Exchange Act), the Securities Administrator
shall prepare
and file on behalf of the Trust any Form 10-D required by the
Exchange Act, in
form and substance as required by the Exchange Act. The Securities
Administrator
shall file each Form 10-D with a copy of the Monthly Statement for
such
Distribution Date attached thereto. Any disclosure in addition to
the Monthly
Statement for such Distribution Date that is required to be
included on Form
10-D ("Additional Form 10-D Disclosure") shall be reported by the
parties set
forth on Exhibit Q hereto to the Depositor and the Securities
Administrator and
directed and approved by the Depositor pursuant to the following
paragraph, and
the Securities Administrator will have no duty or liability for any
failure
hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as
set forth in this Section 3.22(b).
As set forth on Exhibit Q hereto, within 5 calendar days after the
related
Distribution Date, (i) the parties described on Exhibit Q shall be
required to
provide to the Securities Administrator (at
cts.sec.notifications@wellsfargo.com
with a copy by facsimile to 410-715-2380) and the Depositor, to the
extent known
by a responsible officer thereof, in EDGAR-
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compatible format, or in such other format as otherwise agreed upon
by the
Securities Administrator and such party, any Additional Form 10-D
Disclosure, if
applicable, together with an Additional Disclosure Notification in
the form of
Exhibit T and (ii) the Depositor shall approve, as to form and
substance, or
disapprove, as the case may be, the inclusion of the Additional
Form 10-D
Disclosure on Form 10-D. The Securities Administrator shall compile
all such
information provided to it in a Form 10-D prepared by it. The
Securities
Administrator has no duty under this Agreement to monitor or
enforce the
performance by the parties listed on Exhibit Q of their duties
under this
paragraph or proactively solicit or procure from such parties any
Additional
Form 10-D Disclosure information. The Depositor will be responsible
for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D
Disclosure
on Form 10-D pursuant to this paragraph.
After preparing the Form 10-D, the Securities Administrator shall,
upon
request, forward electronically a copy of the Form 10-D to the
Master Servicer
for review and, only if Additional Form 10-D Disclosure is
contained therein,
the Securities Administrator shall forward such Form 10-D to the
Depositor for
review. Within 2 Business Days after receipt of such copy, the
Depositor shall
notify the Securities Administrator in writing (which may be
furnished
electronically) of any changes to or approval of such Form 10-D. In
the absence
of any written changes or approval, the Securities Administrator
shall be
entitled to assume that such Form 10-D is in final form and the
Securities
Administrator may proceed with the execution and filing of the Form
10-D. A duly
authorized officer of the Master Servicer shall sign each Form
10-D. If a Form
10-D cannot be filed on time or if a previously filed Form 10-D
needs to be
amended, the Securities Administrator will follow the procedures
set forth in
Section 3.22(h)(ii). Form 10-D requires the registrant to indicate
(by checking
"yes" or "no") that it "(1) has filed all reports required to be
filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12
months (or for
such shorter period that the registrant was required to file such
reports), and
(2) has been subject to such filing requirements for the past 90
days." The
Depositor hereby represents to the Securities Administrator that
the Depositor
has filed all such required reports during the preceding 12 months
and that is
has been subject to such filing requirement for the past 90 days.
The Depositor
shall notify the Securities Administrator in writing, no later than
the fifth
calendar day after the related Distribution Date with respect to
the filing of a
report on Form 10-D, if the answer to either question should be
"no." The
Securities Administrator shall be entitled to rely on such
representations in
preparing, executing and/or filing any such report. Promptly (but
no later than
1 Business Day) after filing with the Commission, the Securities
Administrator
will make available on its internet website a final executed copy
of each Form
10-D prepared and filed by the Securities Administrator. The
signing party at
the Master Servicer can be contacted at the address specified in
Section 11.05.
Each party to this Agreement acknowledges that the performance by
the Master
Servicer and Securities Administrator of its duties under this
Section 3.22(b)
related to the timely preparation, arrangement for execution and
filing of Form
10-D is contingent upon such parties strictly observing all
applicable deadlines
in the performance of their duties under this Section 3.22(b) and
also
contingent upon the Servicers, the Custodian and any Servicing
Function
Participant strictly observing deadlines no later than these set
forth in this
paragraph that are applicable to the parties to this Agreement in
the delivery
to the Securities Administrator of any necessary Additional Form
10-D Disclosure
pursuant to the related Servicing Agreements, any custodial
agreement or any
other applicable agreement. Neither the Master Servicer nor the
Securities
Administrator shall have any liability for any loss, expense,
damage, claim
arising out of or with respect to any failure to properly prepare,
arrange
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for execution and/or timely file such Form 10-D, where such failure
results from
the Master Servicer's or the Securities Administrator's inability
or failure to
receive, on a timely basis, any information from any other party
hereto or any
Servicer, Custodian or Servicing Function Participant needed to
prepare, arrange
for execution or file such Form 10-D, not resulting from its own
negligence, bad
faith or willful misconduct.
(c) On or prior to the 90th day after the end of each fiscal year
of the
Trust or such earlier date as may be required by the Exchange Act
(the "10-K
Filing Deadline") (it being understood that the fiscal year for the
Trust ends
on December 31st of each year), commencing in March 2007, the
Securities
Administrator shall prepare and file on behalf of the Trust a Form
10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K
shall include
the following items, in each case to the extent they have been
delivered to the
Securities Administrator within the applicable time frames set
forth in this
Agreement and the related Servicing Agreements:
(i) a Compliance Statement for each Servicer, the Master Servicer
and
the Securities Administrator (each, a "Reporting Servicer") as
described
under Section 3.20;
(ii) (A) the Assessment of Compliance for each Reporting Servicer,
as
described under Section 3.21(a) and (c), and (B) if each Reporting
Servicer's Assessment of Compliance identifies any material
instance of
noncompliance, disclosure identifying such instance of
noncompliance, or if
each Reporting Servicer's Assessment of Compliance is not included
as an
exhibit to such Form 10-K, disclosure that such report is not
included and
an explanation why such report is not included; provided, however,
that the
Securities Administrator, at its discretion, may omit from the Form
10-K
any Assessment of Compliance described in this clause (ii) or
Attestation
Report described in clause (iii) below that is not required to be
filed
with such Form 10-K pursuant to Regulation AB;
(iii) (A) the Attestation Report for each Reporting Servicer, as
described under Section 3.21(b) and (c), and (B) if any Reporting
Servicer's Attestation Report identifies any material instance of
noncompliance, disclosure identifying such instance of
noncompliance, or if
any Reporting Servicer's Attestation Report is not included as an
exhibit
to such Form 10-K, disclosure that such Attestation Report is not
included
and an explanation why such Attestation Report is not included; and
(iv) a Sarbanes-Oxley Certification, as described in Section
3.22(e).
Any disclosure or information in addition to (i) through (iv) above
that is
required to be included on Form 10-K ("Additional Form 10-K
Disclosure") shall
be reported by the parties set forth on Exhibit R to the Depositor
and the
Securities Administrator and directed and approved by the Depositor
pursuant to
the following paragraph, and the Securities Administrator will have
no duty or
liability for any failure hereunder to determine or prepare any
Additional Form
10-K Disclosure, except as set forth in this Section 3.22(d).
As set forth on Exhibit R hereto, no later than March 1 of each
year that
the Trust is subject to the Exchange Act reporting requirements,
commencing in
2007, (i) the parties
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described in Exhibit R shall be required to provide to the
Securities
Administrator (at cts.sec.notifications@wellsfargo.com with a copy
by facsimile
to 410-715-2380) and the Depositor, to the extent known by a
responsible officer
thereof, in EDGAR-compatible format, or in such other format as
otherwise agreed
upon by the Securities Administrator and such party, together with
an Additional
Disclosure Notification in the form attached hereto as Exhibit T
and (ii) the
Depositor shall approve, as to form and substance, or disapprove,
as the case
may be, the inclusion of the Additional Form 10-K Disclosure on
Form 10-K. The
Securities Administrator shall compile all such information
provided to it in a
Form 10-K prepared by it. The Securities Administrator has no duty
under this
Agreement to monitor or enforce the performance by the parties
listed on Exhibit
R of their duties under this paragraph or proactively solicit or
procure from
such parties any Additional Form 10-K Disclosure information. The
Depositor will
be responsible for any reasonable fees and expenses assessed or
incurred by the
Securities Administrator in connection with including any
Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, the Securities Administrator shall
forward
electronically a copy of the Form 10-K to the Master Servicer and
Depositor for
review. Within three Business Days after receipt of such copy, the
Depositor
shall notify the Securities Administrator in writing (which may be
furnished
electronically) of any changes to or approval of such Form 10-K. A
senior
officer of the Master Servicer in charge of the master servicing
function shall
sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously
filed Form 10-K needs to be amended, the Securities Administrator
will follow
the procedures set forth in Section 3.22(h)(ii). Form 10-K requires
the
registrant to indicate (by checking "yes" or "no") that it "(1) has
filed all
reports required to be filed by Section 13 or 15(d) of the Exchange
Act during
the preceding 12 months (or for such shorter period that the
registrant was
required to file such reports), and (2) has been subject to such
filing
requirements for the past 90 days." The Depositor hereby represents
to the
Securities Administrator that the Depositor has filed all such
required reports
during the preceding 12 months and that is has been subject to such
filing
requirement for the past 90 days. The Depositor shall notify the
Securities
Administrator in writing, no later than March 15th with respect to
the filing of
a report on Form 10-K, if the answer to either question should be
"no." The
Securities Administrator shall be entitled to rely on such
representations in
preparing, executing and/or filing any such report. Promptly (but
no later than
1 Business Day) after filing with the Commission, the Securities
Administrator
will make available on its internet website a final executed copy
of each Form
10-K prepared and filed by the Securities Administrator. The
signing party at
the Master Servicer can be contacted at the address specified in
Section 11.05.
The parties to this Agreement acknowledge that the performance by
the Master
Servicer and the Securities Administrator of its duties under this
Section
3.22(c) related to the timely preparation, arrangement for
execution and filing
of Form 10-K is contingent upon such parties strictly observing all
applicable
deadlines in the performance of their duties under this Section
3.22(c), Section
3.22(e), Section 3.20 and Section 3.21 and is also contingent upon
the
Servicers, the Custodian and any Servicing Function Participant
strictly
observing deadlines no later than those set forth in this paragraph
that are
applicable to the parties to this Agreement in the delivery to the
Securities
Administrator of any necessary Additional Form 10-K Disclosure, any
Compliance
Statement and any Assessment of Compliance and Attestation Report
pursuant to
the related Servicing Agreements, any custodial agreement or any
other
applicable agreement. Neither the Master Servicer nor the
Securities
Administrator shall have any liability for any loss, expense,
damage, claim
arising out of or with
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respect to any failure to properly prepare, arrange for execution
and/or timely
file such Form 10-K, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis,
any
information from any other party hereto or any Servicer or
Servicing Function
Participant needed to prepare, arrange for execution or file such
Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(d) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable
Event"), and if
requested by the Depositor, the Securities Administrator shall
prepare and file
on behalf of the Trust any Form 8-K, as required by the Exchange
Act, provided
that the Depositor shall file the initial Form 8-Ks in connection
with the
issuance of the Certificates. Any disclosure or information related
to a
Reportable Event or that is otherwise required to be included on
Form 8-K other
than the initial Form 8-Ks filed in connection with the issuance of
the
Certificates ("Form 8-K Disclosure Information") shall be reported
by the
parties set forth on Exhibit S hereto to the Depositor and the
Securities
Administrator and directed and approved by the Depositor pursuant
to the
following paragraph, and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any
Additional Form
8-K Disclosure Information, or any Form 8-K, except as set forth in
this Section
3.22(d).
As set forth on Exhibit S hereto, no later than the end of business
on the
2nd Business Day after the occurrence of a Reportable Event (i) the
parties to
this transaction shall be required to provide to the Securities
Administrator
(at cts.sec.notifications@wellsfargo.com with a copy by facsimile
to
410-715-2380) and to the Depositor, to the extent known by a
responsible officer
thereof, in EDGAR-compatible format, or in such other format as
otherwise agreed
upon by the Securities Administrator and such party, any Form 8-K
Disclosure
Information, if applicable, together with an Additional Disclosure
Notification
in the form attached hereto as Exhibit T and (ii) the Depositor
shall approve,
as to form and substance, or disapprove, as the case may be, the
inclusion of
the Form 8-K Disclosure Information. The Securities Administrator
shall compile
all such information provided to it in a Form 8-K prepared by it.
The Securities
Administrator has no duty under this Agreement to monitor or
enforce the
performance by the parties listed on Exhibit S of their duties
under this
paragraph or proactively solicit or procure from such parties any
Form 8-K
Disclosure Information. The Depositor will be responsible for any
reasonable
fees and expenses assessed or incurred by the Securities
Administrator in
connection with including any Form 8-K Disclosure Information on
Form 8-K
pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall
forward
electronically a copy of the Form 8-K to the Master Servicer and
Depositor for
review. No later than the close of business New York City time on
the 3rd
Business Day after the Reportable Event, the Depositor shall notify
the
Securities Administrator in writing (which may be furnished
electronically) of
any changes to or approval of such Form 8-K. In the absence of
receipt of any
written changes or approval, the Securities Administrator shall be
entitled to
assume that such Form 8-K is in final form and the Securities
Administrator may
proceed with the execution and filing of the Form 8-K. A duly
authorized officer
of the Master Servicer shall sign the Form 8-K and shall return the
signed Form
8-K to the Securities Administrator no later than noon New York
City time on the
fourth Business Day after the Reportable Event. If a Form 8-K
cannot be filed on
time or if a previously filed Form 8-K needs to be amended, the
Securities
Administrator will follow the procedures set forth in Section
3.22(h)(ii).
Promptly (but no later than 1 Business
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Day) after filing with the Commission, the Securities Administrator
will, make
available on its internet website a final executed copy of each
Form 8-K
prepared and filed by the Securities Administrator. The signing
party at the
Master Servicer can be contacted at the address specified in
Section 11.05. The
parties to this Agreement acknowledge that the performance by the
Securities
Administrator of its duties under this Section 3.22(d) related to
the timely
preparation, arrangement for execution and filing of Form 8-K is
contingent upon
such parties strictly observing all applicable deadlines in the
performance of
their duties under this Section 3.22(d) and also contingent upon
the Servicers,
the Custodian and any Servicing Function Participant strictly
observing
deadlines no later than those set forth in this paragraph that are
applicable to
the parties to this Agreement in the delivery to the Securities
Administrator of
any necessary Form 8-K Disclosure Information pursuant to the
related Servicing
Agreements, any custodial agreement or any other applicable
agreement. Neither
the Master Servicer nor the Securities Administrator shall have any
liability
for any loss, expense, damage, claim arising out of or with respect
to any
failure to properly prepare, arrange for execution and/or timely
file such Form
8-K, where such failure results from the Securities Administrator's
inability or
failure to receive, on a timely basis, any information from any
other party
hereto or any Servicer, Custodian or Servicing Function Participant
needed to
prepare, arrange for execution or file such Form 8-K, not resulting
from its own
negligence, bad faith or willful misconduct.
(e) Each Form 10-K shall include a certification (the
"Sarbanes-Oxley
Certification"), exactly as set forth in Exhibit M attached hereto,
required to
be included therewith pursuant to the Sarbanes-Oxley Act. The
Securities
Administrator shall provide, and shall cause any Servicing Function
Participant
engaged by it to provide, to the Person who signs the
Sarbanes-Oxley
Certification (the "Certifying Person"), by March 15th of each year
in which the
Trust is subject to the reporting requirements of the Exchange Act
and otherwise
within a reasonable period of time upon request, a certification
(each, together
with such similar certification delivered by each Servicer as
described in
Section 3.22(f), a "Back-up Certification"), in the form attached
hereto as
Exhibit N, upon which the Certifying Person, the entity for which
the Certifying
Person acts as an officer, and such entity's officers, directors
and affiliates
(collectively with the Certifying Person, "Certification Parties")
can
reasonably rely. The senior officer of the Master Servicer in
charge of the
master servicing function shall serve as the Certifying Person on
behalf of the
Trust. In the event the Master Servicer, the Securities
Administrator or any
Servicing Function Participant engaged by such parties is
terminated or resigns
pursuant to the terms of this Agreement, or any applicable
sub-servicing
agreement, as the case may be, such party shall provide a Back-up
Certification
to the Certifying Person pursuant to this Section 3.22(e) with
respect to the
period of time it was subject to this Agreement or any applicable
sub-servicing
agreement, as the case may be. Notwithstanding the foregoing, the
Master
Servicer shall not be obligated to sign the Sarbanes-Oxley
Certification in the
event that it does not receive any Back-up Certification required
to be
furnished to it pursuant to this section or any Servicing Agreement
or Custodial
Agreement.
(f) Pursuant to the related Servicing Agreements, the Master
Servicer shall
enforce the obligation of each Servicer to provide the Back-up
Certification
required pursuant to each of the Servicing Agreements.
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(g) Upon any filing with the Commission prepared and filed by the
Securities Administrator, the Securities Administrator shall
promptly deliver or
make available to the Depositor a copy of any such executed report,
statement or
information.
(h) (i) The obligations set forth in paragraphs (a) through (g) of
this
Section shall only apply with respect to periods for which reports
are required
to be filed with respect to the Trust under the Exchange Act. On or
prior to
January 30 of the first year in which the Securities Administrator
is able to do
so under applicable law, unless otherwise requested by the
Depositor, the
Securities Administrator shall prepare and file with the Commission
a Form 15
Suspension Notification executed by the Master Servicer with
respect to the
Trust, with a copy to the Depositor. At the beginning of the
calendar year after
the filing of a Form 15 Suspension Notification, if the Depositor
or the
Certificate Registrar determines that the number of
Certificateholders of the
Offered Certificates 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, Form 10-D and Form 10-K as required pursuant to this Section
and the
then-current reporting requirements of the Exchange Act and the
parties hereto
will again have the obligations set forth in paragraphs (a) through
(h) of this
Section.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any
Form
8-K, Form 10-D or Form 10-K required to be filed by this Agreement
because
required disclosure information was either not delivered to it or
delivered
to it after the delivery deadlines set forth in this Agreement or
for any
other reason, the Securities Administrator will immediately
electronically
notify the Depositor and the Master Servicer of such inability to
make a
timely filing with the Commission. In the case of Form 10-D and
Form 10-K,
the Securities Administrator, the Master Servicer, the Trustee and
the
Depositor will cooperate to prepare and file a Form 12b-25 and a
Form
10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of
the
Exchange Act. In the case of Form 8-K, the Securities Administrator
will,
upon receipt of all required Form 8-K Disclosure Information and
upon the
approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously
filed
Form 8-K, Form 10-D or Form 10-K needs to be amended in connection
with any
Additional Form 10-D Disclosure (other than, in the case of Form
10-D, for
the purpose of restating any Monthly Statement), Additional Form
10-K
Disclosure or Form 8-K Disclosure Information, the Securities
Administrator
will notify the Depositor and such other parties to the transaction
as are
affected by such amendment, and such parties will cooperate to
prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form
12b-25
or any amendment to Form 8-K or Form 10-D shall be signed by a duly
authorized officer (and a senior officer with respect to the Form
10-K) of
the Master Servicer. The parties to this Agreement acknowledge that
the
performance by the Master Servicer and the Securities Administrator
of
their duties under this Section 3.22(h) related to the timely
preparation,
arrangement for execution and filing of Form 15, a Form 12b-25 or
any
amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon
each such
party performing its duties under this Section 3.22(h). Neither the
Master
Servicer nor the Securities Administrator shall have any liability
for any
loss, expense, damage,
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claim arising out of or with respect to any failure to properly
prepare,
arrange for execution and/or timely file any such Form 15, Form
12b-25 or
any amendments to Forms 8-K, Form 10-D or Form 10-K, where such
failure
results from the Securities Administrator's inability or failure to
receive, on a timely basis, any information from any other party
hereto or
any Servicer, the Custodian or any Servicing Function Participant
needed to
prepare, arrange for execution or file such Form 15, Form 12b-25 or
any
amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting from
its own
negligence, bad faith or willful misconduct.
(i) Notwithstanding the provision of Section 11.01, this Section
3.22 may
be amended without the consent of the Certificateholders.
Section 3.23 Maintenance of the Rounding Account; Collections
Thereunder.
On or prior to the Closing Date, the Securities Administrator shall
establish an
account (a "Rounding Account") with respect to the Special Retail
Certificates,
and Banc of America Securities LLC shall deposit $999.99 into the
Rounding
Account. The Securities Administrator shall maintain such account
to provide, if
needed, the Rounding Amount (defined below) on any Distribution
Date.
If, on any Distribution Date, the Securities Administrator
determines that
amounts are available out of the Pool Distribution Amount for Loan
Group 2
(after giving effect to the repayment of any funds withdrawn from
the Rounding
Account on prior Distribution Dates which have not been repaid) for
distributions of principal on the Special Retail Certificates, and
the aggregate
amount allocable to such distributions of principal is not an
amount equal to an
integral multiple of $1,000, the Securities Administrator shall
withdraw from
the Rounding Account an amount which, when added to the amount
allocable to such
distributions of principal, would be an integral multiple of $1,000
(the
"Rounding Amount"). On each Distribution Date prior to the date on
which any
Realized Loss would decrease the Class Certificate Balance of the
Class of
Special Retail Certificates, with respect to which the Securities
Administrator
determines that amounts are available out of the Pool Distribution
Amount for
Loan Group 2 for distributions of principal on the Special Retail
Certificates,
the aggregate amount allocable to such Certificates will be applied
first to
repay any funds withdrawn from the Rounding Account on prior
Distribution Dates
which have not been repaid.
Any amounts withdrawn by the Securities Administrator from the
Rounding
Account shall be deposited in the Certificate Account for
distribution to the
Holders of the Special Retail Certificates as described in the
preceding
paragraph.
On or promptly after the date on which any Realized Loss would
decrease the
Class Certificate Balance of the Class of Special Retail
Certificates or the
Class Certificate Balance thereof is reduced to zero, the
Securities
Administrator shall remit to Banc of America Securities LLC any
amounts
remaining in the Rounding Account.
Amounts on deposit in a Rounding Account shall not be invested.
The Rounding Account established hereunder, to the extent that it
constitutes a "reserve fund" for purposes of the REMIC Provisions,
shall be an
"outside reserve fund" as defined in
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Section 1.860G-2(h) of the Treasury Regulations, and in that regard
(i) the
Rounding Account shall be an outside reserve fund and not an asset
of any REMIC,
(ii) the Rounding Account shall be owned for federal tax purposes
by Banc of
America Securities LLC and Banc of America Securities LLC shall
report all
amounts of income, deduction, gain or loss accruing therefrom, and
(iii) amounts
transferred by any REMIC to the Rounding Account shall be treated
for all
federal tax purposes as distributed by such REMIC to Banc of
America Securities
LLC.
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 Servicers (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 Intermediate
Lower-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; provided,
however, that
distributions of principal to the Special Retail Certificates shall
be made as
described in Section 5.11.
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.
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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(g) and Section 3.11 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 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 each Group solely from the Pool Distribution Amount for the
Related Loan
Group, in the following order of priority and to the extent of such
funds:
(i) concurrently to each Class of Senior Certificates and the IO
Component of such Group, 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
but, until the applicable Accretion Termination Date, amounts that
would
have been distributed pursuant to this clause to the Class 1-A-12
Certificates may be distributed instead as principal to the Class
1-A-1 and
Class 1-A-3 Certificates and amounts that would have distributed
pursuant
to this clause to the Class 3-A-2 Certificates may be distributed
as
principal to the Class 3-A-1 Certificates in accordance with
Section
5.02(b)(v);
(ii) concurrently to each Class of Senior Certificates and the PO
Component of such Group, if any, pro rata, based on their Senior
Principal
Distribution Amount and PO Principal Amount, respectively, (A) to
the
Senior Certificates of such Group, 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 PO Component of such Group, if any, in an aggregate amount up
to the
applicable PO Principal Amount for such Group;
(iii) in the case of Group 1 and Group 3, to the PO Component of
such
Group, any applicable PO Deferred Amount (after giving effect to
the
distribution to such PO Component of the PO Recovery for the
Related Loan
Group), up to the Subordinate Principal Distribution Amounts from
amounts
otherwise distributable to the Subordinate Certificates, first to
the Class
B-6 Certificates pursuant to clause (iv)(K) below, second to the
Class B-5
Certificates, pursuant to clause (iv)(I) below, third to the Class
B-4
Certificates, pursuant to clause (iv)(G) below, fourth to the Class
B-3
Certificates, pursuant to clause (iv)(E) below, fifth to the Class
B-2
Certificates, pursuant to clause (iv)(C) below, and finally to the
Class
B-1 Certificates, pursuant to clause (iv)(A) 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;
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(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 applicable PO Deferred Amounts 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 applicable PO Deferred Amounts 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 applicable PO Deferred Amounts 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 applicable PO Deferred Amounts 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 applicable PO Deferred Amounts 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 applicable PO Deferred Amounts pursuant
to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero; and
(v) to the Holder of the Class 2-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Sub-Account and the
Intermediate
Lower-Tier Certificate Sub-Account and any remaining Pool
Distribution
Amounts.
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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, Notional
Amount
or Component Balance, as the case may be, has been reduced to zero.
For any Group and on any Distribution Date, amounts distributed in
respect of the PO Deferred Amounts (including the distribution of
the PO
Recoveries) will not reduce the Component Balance of the applicable
PO
Component.
All distributions in respect of the Interest Distribution Amount
for a
Class or the Component Interest Distribution Amount for an IO
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.
On each Distribution Date, the Securities Administrator shall
distribute any PO Recovery for Loan Group 1 or Loan Group 3 to the
Holders
of the Class CB-PO Certificates.
(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
and the Class 3-LPO Interest) at the pass-through rate thereon, as
described in the next to last paragraph of this Section
5.02(a)(vi). For
purposes of calculating the interest distributable in respect of
each
Uncertificated Lower-Tier Interest and any Distribution Date,
Non-Supported
Interest Shortfalls and Relief Act Reductions shall be allocated to
the
each Uncertificated Lower-Tier Interest in the same relative
proportions as
interest is allocated to such Uncertificated Lower-Tier Interest.
All distributions of principal shall be made first to the Class
1-LPO
Interest and the Class 3-LPO Interest, so as to keep the principal
balances
thereof at all times equal to the Component Balances of the Class
1-30-PO
Component and the Class 3-30-PO Component, respectively; second, to
the
Class 1-LS Interest, the Class 2-LS Interest, the Class 3-LS
Interest and
the 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, the Class 2-LS
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Interest, the Class 3-LS Interest and the Class 4-LS Interest, such
that
the Subordinate Balance Ratio is maintained), and third, any
remaining
principal to the Class 1-L Interest, the Class 2-L Interest, the
Class 3-L
Interest and the 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
and the
Class 3-LPO Interest, so as to keep their principal balances equal
to the
Component Balances of the Class 1-30-PO Component and the Class
3-30-PO
Component, respectively; second, to the Class 1-LS Interest, the
Class 2-LS
Interest, the Class 3-LS Interest and the 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, the
Class
2-LS Interest, the Class 3-LS Interest and the 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, the
Class 2-L
Interest, the Class 3-L Interest and the 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 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 1-30-PO Component and (ii) the principal balance of the Class
3-LPO
Interest will be equal to the Component Balance of the Class
3-30-PO
Component. As of any date, (i) the notional amount of the Class
1-LIO
Interest will be equal to the Class 1-30-IO Notional Amount, (ii)
the
notional amount of the Class 2-LIO Interest will
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be equal to the Class 2-30-IO Notional Amount, (iii) the notional
amount of
the Class 3-LIO Interest will be equal to the Class 3-30-IO
Notional Amount
and (iv) the notional amount of the Class 4-LIO Interest will be
equal to
the Class 4-30-IO Notional Amount.
The pass-through rate with respect to the Class 1-L Interest and
the
Class 1-LS Interest shall be 6.000% per annum. The pass-through
rate with
respect to the Class 2-L Interest and the Class 2-LS Interest shall
be
6.000% per annum. The pass-through rate with respect to the Class
3-L
Interest and the Class 3-LS Interest shall be 5.750% per annum. The
pass-through rate with respect to the Class 4-L Interest and the
Class 4-LS
Interest shall be 6.000% per annum. The pass-through rate with
respect to
the Class 1-LIO Interest, the Class 2-LIO Interest, the Class 3-LIO
Interest and the Class 4-LIO Interest shall be the same as the
Pass-Through
Rate for the Class 1-30-IO Component, the Class 2-30-IO Component,
the
Class 3-30-IO Component and the Class 4-30-IO Component,
respectively, as
each such rate is described in the Preliminary Statement. The Class
1-LPO
Interest and the Class 3-LPO Interest are principal-only interests
and are
not entitled to distributions of 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 Intermediate Lower-Tier
Interests. On each Distribution Date, each Uncertificated
Intermediate
Lower-Tier Interest (other than the Class 1-ITIO Interest, the
Class 2-ITIO
Interest, the Class 3-ITIO Interest and the Class 4-ITIO 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 and shall have its
principal balance increased in the event of Recoveries in an amount
equal
to any such increase in the Class Certificate Balance of the
respective
Corresponding Upper-Tier Class, Classes or Component. On each
Distribution
Date, each Uncertificated Intermediate Lower-Tier Interest (other
than the
Class 1-ITPO Interest and the Class 3-ITPO 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 Intermediate Lower-Tier Interests
in
respect of principal and interest with respect to any Distribution
Date are
referred to herein collectively as the "Intermediate Lower-Tier
Distribution Amount."
As of any date, the principal balance or notional amount of each
Uncertificated Intermediate Lower-Tier Interest equals the
aggregate of the
Class Certificate Balances, Component Balances or Notional Amounts
of the
respective Corresponding Upper-Tier Class, Classes or Component.
The
initial principal balance or notional amount of each Uncertificated
Intermediate Lower-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.
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The pass-through rate with respect to the Class 1-A-IT1 Interest,
Class 1-A-IT2 Interest, Class 1-A-IT3 Interest and the Class
1-A-IT4
Interest shall be 6.000% per annum. The pass-through rate with
respect to
the Class 2-A-IT1 Interest, Class 2-A-IT2 Interest and the Class
2-A-ITR
Interest shall be 6.000% per annum. The pass-through rate with
respect to
the Class 3-A-IT1 Interest shall be 5.750% per annum. The
pass-through rate
with respect to the Class 4-A-IT1 Interest shall be 6.000% per
annum. The
pass-through rate with respect to the Class B-IT1 Interest, Class
B-IT2
Interest, Class B-IT3 Interest, Class B-1T4 Interest, Class B-1T5
Interest
and Class B-I 
