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BANC OF AMERICA FUNDING CORPORATION,
as Depositor,
__________________________________,
as Master Servicer and Securities Administrator,
and
__________________________________,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated __________ __, 20__
______________________________________
Mortgage Pass-Through Certificates
Series 20__-__
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01.
Defined
Terms...................................................................2
Section 1.02.
Interest
Calculations..........................................................26
Section 1.03.
Fiscal
Year....................................................................26
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01.
Conveyance of Mortgage
Loans...................................................26
Section 2.02.
Acceptance by the Trustee of the Mortgage
Loans................................30
Section 2.03.
Representations and Warranties of the Master
Servicer..........................34
Section 2.04.
Representations and Warranties of the Depositor as to the Mortgage
Loans..........................................................................35
Section 2.05.
Designation of Interests in the
REMIC..........................................36
Section 2.06.
Designation of Start-up
Day....................................................36
Section 2.07.
REMIC Certificate Maturity
Date................................................36
Section 2.08.
Execution and Delivery of
Certificates.........................................36
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01.
Master Servicing of the Mortgage
Loans.........................................37
Section 3.02.
Monitoring of
Servicer.........................................................38
Section 3.03.
Fidelity Bond; Errors and Omissions
Insurance..................................39
Section 3.04.
Access to Certain
Documentation................................................40
Section 3.05.
Maintenance of Primary Mortgage Insurance Policy;
Claims.......................40
Section 3.06.
Rights of the Depositor, the Securities Administrator and the
Trustee
in Respect of the Master
Servicer..............................................41
Section 3.07.
Trustee to Act as Master
Servicer..............................................41
Section 3.08.
Servicer Custodial Account and Escrow
Account..................................42
Section 3.09.
Collection of Mortgage Loan Payments, Master Servicer Custodial
Account and Distribution
Account...............................................42
Section 3.10.
Access to Certain Documentation and Information Regarding the
Mortgage
Loans.................................................................44
Section 3.11.
Permitted Withdrawals from the Distribution Account, the Master
Servicer Custodial Account and the Servicer Custodial
Account..................44
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(continued)
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Section 3.12.
Maintenance of Hazard Insurance and Other
Insurance............................46
Section 3.13.
Presentment of Claims and Collection of
Proceeds...............................46
Section 3.14.
Enforcement of Due-On-Sale Clauses; Assumption
Agreements......................46
Section 3.15.
Realization Upon Defaulted Mortgage Loans; REO
Property........................47
Section 3.16.
Trustee to Cooperate; Release of Mortgage
Files................................48
Section 3.17.
Documents, Records and Funds in Possession of the Master Servicer
to be Held for the
Trustee.....................................................49
Section 3.18.
Master Servicer Compensation and Servicer
Compensation.........................50
Section 3.19.
Annual Statement as to
Compliance..............................................50
Section 3.20.
Assessments of Servicing Compliance; Registered Public Accounting
Firm Attestation
Reports.......................................................51
Section 3.21.
Advances.......................................................................52
Section 3.22.
Reports to the Securities and Exchange
Commission..............................53
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01.
Master Servicer's
Certificate..................................................59
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; REMIC ADMINISTRATION
Section 5.01.
Distributions..................................................................59
Section 5.02.
Priorities of
Distributions....................................................59
Section 5.03.
Allocation of
Losses...........................................................63
Section 5.04.
Statements to
Certificateholders...............................................64
Section 5.05.
Tax Returns and Reports to
Certificateholders..................................68
Section 5.06.
Tax Matters
Person.............................................................68
Section 5.07.
Rights of the Tax Matters Person in Respect of the Securities
Administrator..................................................................69
Section 5.08.
REMIC Related
Covenants........................................................69
ARTICLE VI
THE CERTIFICATES
Section 6.01.
The
Certificates...............................................................70
Section 6.02.
Registration of Transfer and Exchange of
Certificates..........................71
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TABLE OF CONTENTS
(continued)
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Section 6.03.
Mutilated, Destroyed, Lost or Stolen
Certificates..............................75
Section 6.04.
Persons Deemed
Owners..........................................................75
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01.
Respective Liabilities of the Depositor and the Master
Servicer................76
Section 7.02.
Merger or Consolidation of the Depositor or the Master
Servicer................76
Section 7.03.
Limitation on Liability of the Depositor, the Master Servicer and
Others.........................................................................76
Section 7.04.
Depositor and Master Servicer Not to
Resign....................................77
Section 7.05.
Assignment or Delegation of Duties by the Master
Servicer......................77
ARTICLE VIII
DEFAULT
Section 8.01.
Events of
Default..............................................................78
Section 8.02.
Remedies of
Trustee............................................................79
Section 8.03.
Directions by Certificateholders and Duties of Trustee During Event
of
Default.....................................................................80
Section 8.04.
Action upon Certain Failures of the Master Servicer and upon Event
of
Default.....................................................................80
Section 8.05.
Trustee to Act; Appointment of
Successor.......................................81
Section 8.06.
Notification to
Certificateholders.............................................82
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01.
Duties of Trustee and Securities
Administrator.................................82
Section 9.02.
Certain Matters Affecting the Trustee and the Securities
Administrator..................................................................84
Section 9.03.
Neither Trustee nor Securities Administrator Liable for
Certificates
or Mortgage
Loans..............................................................85
Section 9.04.
Trustee and Securities Administrator May Own
Certificates......................86
Section 9.05.
Eligibility Requirements for Trustee and the Securities
Administrator..........87
Section 9.06.
Resignation and Removal of Trustee and the Securities
Administrator............87
Section 9.07.
Successor Trustee or Securities
Administrator..................................88
Section 9.08.
Merger or Consolidation of Trustee or Securities
Administrator.................89
Section 9.09.
Appointment of Co-Trustee or Separate
Trustee..................................90
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TABLE OF CONTENTS
(continued)
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Section 9.10.
Authenticating
Agents..........................................................91
Section 9.11.
Securities Administrator's Fees and Expenses and Trustee's Fees and
Expenses.......................................................................92
Section 9.12.
Appointment of
Custodian.......................................................92
Section 9.13.
Paying
Agents..................................................................93
Section 9.14.
Limitation of
Liability........................................................94
Section 9.15.
Trustee or Securities Administrator May Enforce Claims Without
Possession of
Certificates.....................................................94
Section 9.16.
Suits for
Enforcement..........................................................94
Section 9.17.
Waiver of Bond
Requirement.....................................................94
Section 9.18.
Waiver of Inventory, Accounting and Appraisal
Requirement......................94
ARTICLE X
TERMINATION
Section 10.01.
Termination upon Purchase or Liquidation of All Mortgage
Loans.................95
Section 10.02.
Additional Termination
Requirements............................................97
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01.
Amendment......................................................................97
Section 11.02.
Recordation of Agreement;
Counterparts.........................................99
Section 11.03.
Limitation on Rights of
Certificateholders.....................................99
Section 11.04.
Governing
Law.................................................................100
Section 11.05.
Notices.......................................................................100
Section 11.06.
Severability of
Provisions....................................................100
Section 11.07.
Certificates Nonassessable and Fully
Paid.....................................101
Section 11.08.
Access to List of
Certificateholders..........................................101
Section 11.09.
Recharacterization............................................................101
Section 11.10.
Insolvency....................................................................101
Section 11.11.
Regulation AB Compliance; Intent of Parties;
Reasonableness...................102
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EXHIBITS
Exhibit A-1
Form of Face of Class A-1 Certificate
Exhibit A-R
Form of Face of Class A-R Certificate
Exhibit A-PO
Form of Face of Class A-PO Certificate
Exhibit B-1
Form of Face of Class B-1 Certificate
Exhibit B-2
Form of Face of Class B-2 Certificate
Exhibit B-3
Form of Face of Class B-3 Certificate
Exhibit B-4
Form of Face of Class B-4 Certificate
Exhibit B-5
Form of Face of Class B-5 Certificate
Exhibit B-6
Form of Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates
Exhibit D
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 I of Transferee's Certificate
Exhibit G-2B
Form II of Transferee's Certificate
Exhibit H
Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I
Form of Affidavit Regarding Transfer of the Residual Certificate
Exhibit J
[Reserved]
Exhibit K
[Reserved]
Exhibit L
List of Recordation States
Exhibit M
Form of Initial Certification
Exhibit N
Form of Final Certification
Exhibit O
Form of Sarbanes-Oxley Certification
Exhibit P
Form of Securities Administrator's Certification
Exhibit Q
Servicing Criteria
Exhibit R-1
Additional Form 10-D Information
Exhibit R-2
Additional Form 10-K Information
Exhibit R-3
Form 8-K Information
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated _______ __, 20__ is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION,
as depositor
(together with its permitted successors and assigns, the
"Depositor"),
______________, as master servicer (together with its permitted
successors and
assigns, in such capacity, the "Master Servicer") and as securities
administrator (together with its permitted successors and assigns,
in such
capacity, the "Securities Administrator"), and ________________ as
trustee
(together with its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H
T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and
the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate
for federal
income tax purposes will be treated as a real estate mortgage
investment conduit
(a "REMIC"). The Senior Certificates (other than the Class A-R
Certificate) and
the Subordinate Certificates are referred to collectively as the
"Regular
Certificates" and shall constitute "regular interests" in the
REMIC. The Class
A-R Certificate shall be the "residual interest" in the REMIC. The
Certificates
will represent the entire beneficial ownership interest in the
Trust. The
"latest possible maturity date" for federal income tax purposes of
all interests
created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in
excess thereof
in which the Classes of Certificates shall be issuable (except that
one
Certificate of each Class of Certificates may be issued in any
amount in excess
of the minimum denomination, but less than the integral multiple in
excess of
the minimum):
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Initial Class
Certificate
Integral
Balance or
Multiples in
Classes
Notional Amount
Pass-Through Rate
Minimum Denomination
Excess of Minimum
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Class A-1
$__________
_____%
$[1,000]
$1
---------------------------------------------------------------------------------------------------------
Class A-PO
$__________
(1)
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Class A-R
$100.00
$100
N/A
---------------------------------------------------------------------------------------------------------
Class B-1
$__________
_____%
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
Class B-2
$__________
_____%
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
Class B-3
$__________
_____%
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
Class B-4
$__________
_____%
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
Class B-5
$__________
_____%
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
Class B-6
$__________
_____%
$[25,000]
$1
---------------------------------------------------------------------------------------------------------
__________________
(1)
The Class A-PO Certificates are Principal Only Certificates and are
not
entitled to distributions with respect to interest.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires,
shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class, one month's interest accrued during the
related Interest
Accrual Period at the applicable Pass-Through Rate on the
applicable Class
Certificate Balance.
Additional Form 10-D Information: As defined in Section 3.22(b).
Additional Form 10-K Information: As defined in Section 3.22(c).
Additional Servicer: As defined in Section 3.02(g).
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-off Date Pool Principal Balance of the Mortgage Loans minus the
sum of (i)
all amounts in respect of principal received in respect of the
Mortgage Loans
(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 (ii) the
principal
portion of all Realized Losses (other than Debt Service Reductions)
incurred on
the Mortgage Loans from the Cut-off Date through the end of the
month preceding
such Distribution Date.
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Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date, the difference between the Adjusted Pool Amount
and the
Adjusted Pool Amount (PO Portion).
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date, the sum of the amounts, calculated as follows, with respect
to all
Outstanding Mortgage Loans: the product of (i) the PO Percentage
for each 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.
Advance: A Periodic Advance or a Servicing Advance.
Advance Date: As to any Distribution Date, the Business Day
preceding the related Remittance Date.
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 (ii) the appraised value determined
in an
appraisal made at the request of a Mortgagor subsequent to
origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage
Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form,
sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property
is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
Book-Entry Certificate: Any Class of Certificates other than the
Physical Certificates.
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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
, each state in which the servicing offices of the Servicer are
located, each
state in which the master servicing offices of the Master Servicer
are located
or each state in which the Corporate Trust Offices of the Trustee
and the
Securities Administrator are located are required or authorized by
law or
executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.03(d).
Call Right Holder: ____________, in respect of its right to
purchase
the Mortgage Loans as set forth in Section 10.01.
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass Through Certificates, Series 20___-___ that are issued
pursuant to 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, _________________; 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 the
Securities Administrator shall not 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.
Certification:
As defined in Section 3.22.
Class: As to the Certificates, the Class A-1, Class A-PO, Class
A-R,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6, as the case
may be.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5
-4-
and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class and any date
of
determination, and subject to Section 5.03(e), the Initial Class
Certificate
Balance of such Class minus (A) the sum of (i) all distributions of
principal
made with respect thereto (including in the case of a Class of
Subordinate
Certificates, any principal otherwise payable to such Class of
Subordinate
Certificates used to pay any Class PO Deferred Amounts) and (ii)
all reductions
in Class Certificate Balance previously allocated thereto pursuant
to Section
5.03(b).
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate
Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the
amount of
interest actually distributed on such Class on such Distribution
Date pursuant
to clause (i) of the definition of "Interest Distribution Amount."
Class PO Deferred Amount: As to any Distribution Date and the Class
A-PO Certificates, the sum of the amounts by which the Certificate
Balance of
such Class will be reduced on such Distribution Date or has been
reduced on
prior Distribution Dates as a result of Section 5.03(b) less the
sum of (a) the
Class PO Recoveries for prior Distribution Dates and (b) the
amounts distributed
to such Class pursuant to Section 5.02(a)(iii) on prior
Distribution Dates.
Class PO Recovery: As to any Distribution Date, the lesser of (a)
the Class PO Deferred Amounts 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 Prior Period, 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.
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class, the amount by which the aggregate
Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the
amount of
interest actually distributed on such Class on such prior
Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution
Amount."
Closing Date: _______ ___ 20___.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of (a) the aggregate Servicing Fee
payable to the
Servicer as of the Due Date in the month preceding the month of
such
Distribution Date and (b) the aggregate Prepayment Interest
Shortfall with
respect to such Distribution Date.
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
-5-
leased by a Cooperative, which unit the Mortgagor has an exclusive
right to
occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the
Cooperative
Apartment occupied by the Mortgagor and relating to the related
Cooperative
Stock, which lease or agreement confers an exclusive right to the
holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing
statements and
(v) a stock power (or other similar instrument), and ancillary
thereto, a
Recognition Agreement, each of which was transferred and assigned
to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the stock certificate or other instrument evidencing the related
Cooperative
Stock.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of
this
instrument is located at _______________, Attention:
__________________, 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 ______________, Attention: ________________, and for
certificate
transfer purposes is located at ________________, Attention:
___________________, 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.
Custodian: Initially, the Trustee, and thereafter the Custodian, if
any, hereafter appointed by the Trustee pursuant to Section 9.12.
The Custodian
may (but need not) be the Trustee or any Person directly or
indirectly
controlling or controlled by or under common control of either of
them. None of
the Master Servicer, the 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) the Servicer,
procedures (including collection procedures) that the Servicer
customarily
employs and exercises in servicing and administering mortgage loans
for its own
account and which are in accordance with accepted mortgage
servicing practices
of prudent lending institutions servicing mortgage loans of the
same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties
are located and (ii) the Master Servicer, those master servicing
-6-
procedures that constitute customary and usual standards of
practice of prudent
mortgage loan master servicers.
Cut-off Date: _______ ___, 20___.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date Principal Balances of the Mortgage Loans, which is
$__________________________.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the
Cut-off Date,
reduced by all installments of principal due on or prior thereto
whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on
the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of
the monthly
payment of principal and/or interest required to be paid with
respect to such
Due Date by the Mortgagor as established by a court of competent
jurisdiction
(pursuant to an order which has become final and nonappealable) as
a result of a
proceeding initiated by or against the related Mortgagor under the
Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no
such excess
shall be considered a Debt Service Reduction so long as (a) the
Servicer is
pursuing an appeal of the court order giving rise to any such
modification and
(b)(1) such Mortgage Loan is not in default with respect to payment
due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the
Servicer, the
Master Servicer or the Trustee, as applicable, in accordance with
the terms of
such Mortgage Loan as in effect on the Cut-off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02 or
2.04.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under
such Mortgage
Loan over (ii) the secured valuation thereof established by a court
of competent
jurisdiction (pursuant to an order which has become final and
nonappealable) as
a result of a proceeding initiated by or against the related
Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant
to which
such Mortgagor retained such Mortgaged Property; provided that no
such excess
shall be considered a Deficient Valuation so long as (a) the
Servicer is
pursuing an appeal of the court order giving rise to any such
modification and
(b)(1) such Mortgage Loan is not in default with respect to
payments due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the
Servicer, the
Master Servicer or the Trustee, as applicable, in accordance with
the terms of
such Mortgage Loan as in effect on the Cut-off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
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Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the
Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry
Certificates or any
successor thereto appointed in accordance with this Agreement. The
Depository
shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository
effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: With respect to any Distribution Date as
defined
in the Servicing Agreement.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date that is less than _____% per
annum.
Distribution 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 "___________________________, as
Securities
Administrator for ______________________, as Trustee, in trust for
registered
holders of Banc of America Funding Corporation Mortgage
Pass-Through
Certificates, Series 20___-___." Funds in the Distribution Account
shall be held
in trust for the Holders of the Certificates for the uses and
purposes set forth
in this Agreement.
Distribution Date: The ____ day of each month beginning in _______
___, 20___ (or, if such day is not a Business Day, the next
Business Day).
Distribution Date Statement: As defined in Section 3.22(b).
Due Date: As to any Distribution Date and each Mortgage Loan, the
[first] day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust
company the
short-term unsecured debt obligations of which (or, in the case of
a depository
institution or trust company that is the principal subsidiary of a
holding
company, the debt obligations of such holding company) have the
highest
short-term ratings of each Rating Agency at the time any amounts
are held on
deposit therein, or (ii) an account or accounts in a depository
institution or
trust company in which such accounts are insured by the FDIC (to
the limits
established by the FDIC) and the uninsured deposits in which
accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to
the Trustee, the Securities Administrator and to each Rating
Agency, the
Certificateholders have a claim with respect to the funds in such
account or a
perfected first priority security interest against any collateral
(which shall
be limited to
-8-
Permitted Investments) securing such funds that is superior to
claims of any
other depositors or creditors of the depository institution or
trust company in
which such account is maintained, or (iii) a trust account or
accounts
maintained with the trust department of a federal or state
chartered depository
institution or trust company (including the Trustee and the
Securities
Administrator), acting in its fiduciary capacity or (iv) any other
account
acceptable to each Rating Agency. Eligible Accounts may bear
interest and may
include, if otherwise qualified under this definition, accounts
maintained with
the Trustee or the Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5 or Class
B-6
Certificate.
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
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 an 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.
FHA: Federal Housing Administration, or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant
to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by
written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
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Form 8-K: As defined in Section 3.22(a).
Form 8-K Information: As defined in Section 3.22(e).
Form 10-D: As defined in Section 3.22(a).
Form 10-K: As defined in Section 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the
Trustee, the
Securities Administrator, the Master Servicer and the Servicer,
(ii) does not
have any direct financial interest or any material indirect
financial interest
in the Depositor, the Trustee, the Securities Administrator, the
Master Servicer
or the Servicer or in an affiliate of any of them, and (iii) is not
connected
with the Depositor, the Trustee, the Securities Administrator, the
Master
Servicer or the Servicer as an officer, employee, promoter,
underwriter,
trustee, partner, director or person performing similar functions.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance set forth in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders
and
endorsements thereto in effect, including any replacement policy or
policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in
such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of Certificates (other than the Class A-PO Certificates), 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.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class, 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.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
Prior Period and as to which the Servicer has certified (in
accordance with the
Servicing Agreement) that it has received all proceeds it expects
to receive in
connection with the liquidation of such Mortgage Loan including the
final
disposition of an REO Property.
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Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of
defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or
otherwise or
amounts received in connection with any condemnation or partial
release of a
Mortgaged Property and any other proceeds received in connection
with an REO
Property, less the sum of related unreimbursed Servicing Fees and
Advances.
Loan-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.
LPMI Policy: A lender-paid Primary Mortgage Insurance Policy.
Master Servicer: ______________________ and its
successors-in-interest and, if a successor master servicer is
appointed
hereunder, such successor, as master servicer.
Master Servicer Custodial Account: The account or accounts created
and maintained by the Master Servicer pursuant to Section 3.09
which must be an
Eligible Account.
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 from the
Master Servicer pursuant to Section 4.01.
Master Servicing Officer: With respect to the Master Servicer, any
officer of the Master Servicer involved in, or responsible for, the
administration and master servicing of the Mortgage Loans whose
name appears on
a list of servicing officers furnished to the Securities
Administrator by the
Master Servicer, as such list may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
(including attorney's fees) incurred by the Trustee or a successor
master
servicer in connection with the transfer of master servicing or
servicing from a
predecessor master servicer, including, without limitation, any
costs or
expenses associated with the complete transfer of all master
servicing data or
servicing data and the completion, correction or manipulation of
such master
servicing data or servicing data as may be required by the Trustee
or a
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).
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
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Deficient Valuation that affects the amount of the monthly payment
due on such
Mortgage Loan.
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.
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,
prior to giving
any effect to any Debt Service Reduction.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated _______ ___, 20___, 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, setting forth the following information with respect to
each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) a code
indicating whether
the Mortgaged Property is owner-occupied; (iii) the property type
for each
Mortgaged Property; (iv) the original months to maturity or the
remaining months
to maturity from the Cut-off Date; (v) the Loan-to-Value Ratio at
origination;
(vi) the Mortgage Interest Rate as of the Cut-off Date; (vii) the
date on which
the first Monthly Payment was due on the Mortgage Loan, and, if
such date is not
the Due Date currently in effect, such Due Date; (viii) the stated
maturity
date; (ix) the amount of the Monthly Payment as of the Cut-off
Date; (x) the
paid-through date; (xi) the original principal amount of the
Mortgage Loan;
(xii) the principal balance of the Mortgage Loan as of the close of
business on
the Cut-off Date, after application of payments of principal due on
or before
the Cut-off Date, whether or not collected, and after deduction of
any payments
collected of scheduled principal due after the Cut-off Date; (xiii)
a code
indicating the purpose of the Mortgage Loan; (xiv) a code
indicating the
documentation style; (xv) the Appraised Value; and (xvi) the
closing date of the
Mortgage Loan. With respect to the Mortgage Loans in the aggregate,
the Mortgage
Loan Schedule shall set forth the following information, as of the
Cut-off Date:
(i) the number of Mortgage Loans; (ii) the current aggregate
outstanding
principal balance of the Mortgage Loans; (iii) the weighted average
Mortgage
Interest Rate of the Mortgage Loans; and (iv) the weighted average
months to
maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are
held as a part
of the Trust Estate (including any Substitute Mortgage Loans and
REO Property),
the Mortgage Loans originally so held being identified in the
Mortgage Loan
Schedule.
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Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Cooperative Stock or residential long-term
leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the
first day of
the month preceding the month of the related Distribution Date
reduced by (i)
the applicable Servicing Fee Rate and Trustee Fee Rate for such
Mortgage Loan
and (ii) with respect to any Mortgage Loan covered by an LPMI
Policy, the per
annum premium rate for such Mortgage Loan.
Net WAC: As to any Distribution Date, the weighted average of the
Net Mortgage Interest Rates of the Mortgage Loans (based on the
Stated Principal
Balances of the Mortgage Loans on the Due Date in the month
preceding the month
of such Distribution Date.
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 ____%. As to any Mortgage Loan that is not a Discount
Mortgage Loan,
100%.
Non-PO Principal Amount: As to any Distribution Date, 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 on the related Due Date,
(b) the
Stated Principal Balance, as of the date of repurchase, of (I) each
Mortgage
Loan that was repurchased by the Servicer pursuant to the Servicing
Agreement as
of such Distribution Date, (II) any Mortgage Loan repurchased by
the Sponsor
pursuant to the Mortgage Loan Purchase Agreement or a Purchase
Obligation as of
such Distribution Date or (III) any Mortgage Loan repurchased by
the Depositor
pursuant to a Purchase Obligation, (c) any Substitution Adjustment
Amount in
connection with a Defective Mortgage Loan received with respect to
such
Distribution Date, (d) any Liquidation Proceeds allocable to
recoveries of
principal of Mortgage Loans that are not yet Liquidated Mortgage
Loans received
by the Servicer, during the Prior Period relating to such
Distribution Date, (e)
with respect to each Mortgage Loan that became a Liquidated
Mortgage Loan during
the Prior Period relating to such Distribution Date, the amount of
Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal
received by the
Servicer, with respect to such Mortgage Loan during such Prior
Period, (f) all
Principal Prepayments on the Mortgage Loans received by the
Servicer during
Prior Period and (g) any other principal recoveries not described
in (a) through
(f) of this definition received on the Mortgage Loans during the
Prior Period
relating to such Distribution Date; and (ii) the Non-PO Recovery
for such
Distribution Date.
Non-PO Recovery: As to any Distribution Date, the amount of all
Recoveries received during Prior Period less the Class PO Recovery
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
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Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a Mortgage Loan which has not
been previously
reimbursed and which, in the good faith judgment of the Servicer
will not or, in
the case of a proposed Advance, would not be ultimately recoverable
from the
related Mortgagor, related Liquidation Proceeds, Insurance Proceeds
or other
recoveries in respect of the related Mortgage Loan.
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 the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee if such opinion is delivered to the Trustee, or acceptable
to the
Securities Administrator if such opinion is delivered to the
Securities
Administrator, who may be counsel for the Depositor or the Master
Servicer,
except that any opinion of counsel relating to the qualification of
the Trust
Estate as a REMIC 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
____%
Class B-2
____%
Class B-3
____%
Class B-4
____%
Class B-5
____%
Class B-6
0.00%
Original Subordinate Certificate Balance: $_______________________
for the Subordinate Certificates.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal Prepayment in Full prior to such
Due Date,
which did not become
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a Liquidated Mortgage Loan prior to such Due Date and which was not
purchased
from the Trust prior to such Due Date pursuant to Sections 2.02 or
2.04.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of Certificates, the per annum
rate set forth or described in the Preliminary Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate by
the Initial
Class Certificate Balance of the Class of which such Certificate is
a part.
Periodic Advance: Shall have the meaning given to the term "Monthly
Advance" in the Servicing Agreement.
Permitted Investments: One or more of the following:
(i)
obligations of or guaranteed as to principal and interest by
the United States, Freddie Mac, Fannie Mae or any agency or
instrumentality of the United States when such obligations are
backed by
the full faith and credit of the United States; provided that such
obligations of Freddie Mac or Fannie Mae shall be limited to senior
debt
obligations and mortgage participation certificates other than
investments
in mortgage-backed or mortgage participation securities with yields
evidencing extreme sensitivity to the rate of principal payments on
the
underlying mortgages, which shall not constitute Permitted
Investments
hereunder;
(ii)
repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition
thereof with
a corporation incorporated under the laws of the United States or
any
state thereof rated not lower than "___" by _______ and "___" by
_______;
(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 "___" by _______ and "___" by _______;
(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
"___" by
_______ and "___" by _______;
(v)
investments in money market funds (including funds of the
Securities
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Administrator or its affiliates, or funds for which an affiliate of
the
Securities Administrator acts as advisor, as well as funds for
which the
Securities Administrator and its affiliates may receive
compensation)
rated either "___" by _______ (if rated by _______) and "___" by
_______
or otherwise approved in writing by each Rating Agency; and
(vi)
other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained
by the
Master Servicer or Securities Administrator, as the case may be,
will not
affect the qualification of the Trust Estate as a REMIC;
provided, however, that no instrument shall be a Permitted
Investment if it
represents either (a) the right to receive only interest payments
with respect
to the underlying debt instrument or (b) the right to receive both
principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of such
underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization which is exempt from tax imposed
by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code
on unrelated
business taxable income) (except certain farmers' cooperatives
described in Code
Section 521), (iv) rural electric and telephone cooperatives
described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income
on a
Residual Certificate is allocable to a foreign permanent
establishment or fixed
base, within the meaning of an applicable income tax treaty, of
such Person or
any other U.S. Person, and (vi) any other Person so designated by
the Master
Servicer based on an Opinion of Counsel to the effect that any
transfer to such
Person may cause the Trust or any other Holder of a Residual
Certificate to
incur tax liability that would not be imposed other than on account
of such
transfer. The terms "United States," "State" and "international
organization"
shall have the meanings set forth in Code Section 7701 or successor
provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Physical Certificates: The Class A-R, Class B-4, Class B-5 and
Class
B-6 Certificates.
Plan: As defined in Section 6.02(e).
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, the sum of (i)
the
sum of the applicable PO Percentage of (a) the principal portion of
each Monthly
Payment due on each
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Mortgage Loan on the related Due Date, (b) the Stated Principal
Balance, as of
the date of repurchase, of (I) each Mortgage Loan that was
repurchased by the
Servicer pursuant to the Servicing Agreement as of such
Distribution Date, (II)
any Mortgage Loan repurchased by the Sponsor pursuant to the
Mortgage Loan
Purchase Agreement or a Purchase Obligation as of such Distribution
Date or
(III) any Mortgage Loan repurchased by the Depositor pursuant to a
Purchase
Obligation, (c) any Substitution Adjustment Amount in connection
with any
Defective Mortgage Loan received with respect to such Distribution
Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans that
are not yet Liquidated Mortgage Loans received by the Servicer
during the Prior
Period relating to such Distribution Date, (e) with respect to each
Mortgage
Loan that became a Liquidated Mortgage Loan during the Prior Period
relating to
such Distribution Date, the amount of Liquidation Proceeds
(excluding Excess
Proceeds) allocable to principal received by the Servicer, with
respect to such
Mortgage Loan during such Prior Period with respect to such
Mortgage Loan and
(f) any other principal recoveries not described in (a) through (e)
of this
definition received on the Mortgage Loans during the Prior Period
relating to
such Distribution Date; and (ii) the Class PO Recovery for such
Distribution
Date.
Pool Distribution Amount: As to any Distribution Date, the excess
of
(a) the sum of (i) the aggregate of (A) the interest portion of any
Monthly
Payments on the Mortgage Loans (net of the Servicing Fee) and the
principal
portion of any Monthly Payments on the Mortgage Loans due on the
Due Date in the
calendar month in which such Distribution Date occurs and which is
received
prior to the related Determination Date and (B) all Periodic
Advances made by
the Servicer (or the Master Servicer or the Trustee) in respect of
the Mortgage
Loans and payments of Compensating Interest in respect of such
Distribution Date
deposited to the Master Servicer Custodial Account pursuant to
Section
3.09(d)(vi); (ii) all Liquidation Proceeds received on the Mortgage
Loans during
the preceding calendar month and deposited to the Master Servicer
Custodial
Account pursuant to Section 3.09(d)(iii); (iii) all Principal
Prepayments
received on the Mortgage Loans during the calendar month preceding
the month of
such Distribution Date and deposited to the Master Servicer
Custodial Account
pursuant to Section 3.09(d)(i); (iv) in connection with Defective
Mortgage
Loans, the aggregate of the Purchase Prices and Substitution
Adjustment Amounts
remitted on the related Remittance Date pursuant to Section
3.09(d)(vii); (v)
any other amounts in the Master Servicer Custodial Account
deposited therein
pursuant to Sections 3.09(d)(iv), (v) and (viii) in respect of such
Distribution
Date; (vi) any Reimbursement Amount required to be included
pursuant to Section
5.02(a) and (vii) any Non-PO Recovery with respect to such
Distribution Date;
over (b) any amounts permitted to be withdrawn from the Master
Servicer
Custodial Account pursuant to clauses (i) through (viii),
inclusive, of Section
3.11(a).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balance of all Mortgage Loans 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, the sum for each Mortgage Loan of the product of
(a) the
Non-PO Percentage of such Mortgage Loan and (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
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which such Distribution Date occurs.
Premium Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date that is greater than or equal
to ____% per
annum.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the
calendar
month preceding such Distribution Date, the amount, if any, by
which one month's
interest at the related Mortgage Interest Rate (net of the
Servicing Fee Rate)
on such Principal Prepayment exceeds the amount of interest paid in
connection
with such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect
to any
Mortgage Loan, in each case issued by an insurer acceptable to
Fannie Mae or
Freddie Mac.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest.
The Class A-PO
Certificates are the only Principal Only Certificates.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received
in advance
of its scheduled Due Date and is not accompanied by an amount of
interest
representing scheduled interest due on any date or dates in any
month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Prior Period: With respect to any Distribution Date, the calendar
month immediately preceding the month of such Distribution Date.
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 Amount allocable to such Class,
equal to the
product of the Subordinate Principal Distribution Amount for the
Subordinate
Certificates 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
Sections 2.02 or
2.04, an amount equal to (a) in the case of the Sponsor, the sum of
(i) the
unpaid principal balance thereof, (ii) the unpaid accrued interest
thereon at
the applicable Mortgage Interest Rate from the Due Date to which
interest was
last paid by the Mortgagor to the first day of the month following
the month in
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which such Mortgage Loan became eligible to be repurchased and (b)
in the case
of the Servicer, the sum of (i) the Stated Principal Balance of the
Mortgage
Loan, (ii) interest on such Stated Principal Balance at the
Mortgage Interest
Rate from the date on which interest has last been paid and
distributed through
the last day of the month in which such repurchase takes place and
(iii) any
costs and damages incurred by the Trust in connection with any
violation by such
repurchased Mortgage Loan of any predatory or abusive lending law,
less (x)
amounts received or advanced in respect of such repurchased
Mortgage Loan which
are being held in the Servicer Custodial Account for distribution
in the month
of repurchase and (y) if the Servicer is servicing such Mortgage
Loan under the
Servicing Agreement, the Servicing Fee for such Mortgage Loan.
Rating Agency: Each of ______________ and ______________. If either
such organization or a successor is no longer in existence, "Rating
Agency"
shall be such nationally recognized statistical rating
organization, or other
comparable Person, as is designated by the Depositor, notice of
which
designation shall be given to the Trustee, the Master Servicer and
the
Securities Administrator. References herein to a given rating or
rating category
of a Rating Agency shall mean such rating category without giving
effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid
principal
balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date
as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Net Mortgage Interest Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that
has become the
subject of a Deficient Valuation, if the principal amount due under
the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become the
subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Monthly Payment has been
reduced.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of
such
Cooperative Loan.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of
the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
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Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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 Securities and Exchange 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 Securities and
Exchange
Commission, or as may be provided by the Securities and Exchange
Commission or
its staff from time to time.
Reportable Event: As defined in Section 3.22(e).
Reimbursement Amount: As defined in Section 2.02.
Relevant Servicing Criteria: The Servicing Criteria applicable to
the various parties, as set forth on Exhibit Q 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 Trustee, the Securities Administrator or the Master
Servicer, the
term "Relevant Servicing Criteria" may refer to a portion of the
Relevant
Servicing Criteria applicable to the Trustee, the Securities
Administrator or
the Master Servicer.
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 "REMIC" shall mean the
REMIC
constituted by the Trust Estate.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is defined in Section
2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at
Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and regulations promulgated thereunder, as the foregoing may be in
effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: Shall have the meaning given to the term
"Remittance Date" in the Servicing Agreement.
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REO Proceeds: Proceeds, net of any related expenses of the Servicer
or the Master Servicer, received in respect of any REO Property
(including,
without limitation, proceeds from the rental of the related
Mortgaged Property)
which are received prior to the final liquidation of such Mortgaged
Property.
REO Property: A Mortgaged Property acquired by the Servicer
servicing the related Mortgage Loan on behalf of the Trust through
foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee,
as the case
may be, substantially in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to
time under the
Servicing Agreement in respect of such Mortgage Loan.
Residual Certificate: The Class A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust
Department of the
Trustee or the Securities Administrator, as applicable, including
any Senior
Vice President, any Vice President, any Assistant Vice President,
any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of
the Trustee or Securities Administrator, as applicable, customarily
performing
functions similar to those performed by any of the above designated
officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
Securities Administrator: ___________________, 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 A-1, Class A-R and Class A-PO
Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates
is reduced
to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried to six places rounded up, obtained by dividing
(i) the
aggregate Class Certificate Balance of the Senior Certificates
immediately prior
to such Distribution Date, by (ii) the Pool Stated Principal
Balance (Non-PO
Portion) for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
five years
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beginning on the first Distribution Date, 100%. The Senior
Prepayment Percentage
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 year thereafter, the Senior
Percentage plus 70%
of the Subordinate Percentage for such Distribution Date; for any
Distribution
Date in the second year thereafter, the Senior Percentage plus 60%
of the
Subordinate Percentage for such Distribution Date; for any
Distribution Date in
the third year thereafter, the Senior Percentage plus 40% of the
Subordinate
Percentage for such Distribution Date; for any Distribution Date in
the fourth
year thereafter, the Senior Percentage plus 20% of the Subordinate
Percentage
for such Distribution Date; and for any Distribution Date in the
fifth or later
years thereafter, the Senior Percentage for such Distribution Date
(unless on
any of the foregoing Distribution Dates the Senior Percentage
exceeds the
initial Senior Percentage, in which case the Senior Prepayment
Percentage for
such Distribution Date will once again equal 100%). Notwithstanding
the
foregoing, no decrease in the Senior Prepayment Percentage will
occur unless
both of the Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date,
the sum of (i) the Senior Percentage 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 (ii) the Senior
Prepayment
Percentage of (1) the applicable Non-PO Percentage of the amounts
described in
clauses (i)(e) through (g) and (2) the amount described in clause
(ii) of the
definition of "Non-PO Principal Amount" for such Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment Percentage applies, (i) the
outstanding
principal balance of all Mortgage Loans (including, for this
purpose, any
Mortgage Loans in foreclosure, any REO Property and any Mortgage
Loan for which
the Mortgagor has filed for bankruptcy after the Closing Date)
delinquent 60
days or more (averaged over the preceding six month period), as a
percentage of
the aggregate Class Certificate Balance of the Subordinate
Certificates, is not
equal to or greater than 50% or (ii) cumulative Realized Losses
with respect to
the Mortgage Loans as of the applicable Distribution Date do not
exceed the
percentages of the Original Subordinate Certificate Balance for the
Subordinate
Certificates set forth below:
Percentage of Original
Distribution Date Occurring
Subordinate Certificate Balance
---------------------------
-------------------------------
[month] [year] through [month] [year]
[30]%
[month] [year] through [month] [year]
[35]%
[month] [year] through [month] [year]
[40]%
[month] [year] through [month] [year]
[45]%
[month] [year] and thereafter
[50]%
Servicer: ___________ or any successor servicer appointed as herein
provided.
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Servicer Custodial Account: The separate account created and
maintained by the Servicer pursuant to the Servicing Agreement.
Servicing Advance: Shall have the meaning given to the term
"Servicing Advances" in the Servicing Agreement.
Servicing Agreement: The sale and servicing agreement dated
_________ ___, _____ between BANA and the Servicer.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time,
which as of
the Closing Date are listed on Exhibit Q hereto.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in the Servicing Agreement.
Servicing Function Participant: Any affiliate or third party vendor
engaged by the Master Servicer, the Securities Administrator or the
Trustee that
is participating in the servicing function with respect to the
Mortgage Loans
within the meaning of Item 1122 of Regulation AB.
Servicing Officer: As defined in the Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the
Master Servicer or the Trustee, as applicable, related to any
termination of the
Servicer, appointment of a successor Servicer or the transfer and
assumption of
servicing by the Master Servicer or the Trustee, as applicable,
with respect to
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).
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Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In
Shift Percentage
------------------------------
----------------
[month] [year] through [month] [year]
[0]%
[month] [year] through [month] [year]
[30]%
[month] [year] through [month] [year]
[40]%
[month] [year] through [month] [year]
[60]%
[month] [year] through [month] [year]
[80]%
[month] [year] and thereafter
[100]%
Similar Law: As defined in Section 6.02(e).
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 moratorium or similar
waiver or
grace period) after giving effect to any previous partial Principal
Prepayments
and Liquidation Proceeds allocable to principal (other than with
respect to any
Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date
and irrespective of any delinquency in payment by the related
Mortgagor, and
after giving effect to any Deficient Valuation.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date,
100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the
Subordinate Percentage
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 (ii) the Subordinate Prepayment Percentage of the
applicable Non-PO
Percentage of the amounts described in clauses (i)(e) through (g)
and (2) the
amount described in clause (ii) of the definition of "Non-PO
Principal Amount"
for such Distribution Date.
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
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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 FICO 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 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, the
Servicing
Agreement and this Agreement. More than one Substitute Mortgage
Loan may be
substituted for a Defective Mortgage Loan if such Substitute
Mortgage Loans meet
the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner provided under Treasury
Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
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 20__-__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 a REMIC election is to be made,
such entire
Trust Estate consisting of: (i) such Mortgage Loans as from time to
time are
subject to this Agreement, together with the Mortgage Files
relating thereto,
and together with all collections thereon and proceeds thereof,
(ii) any REO
Property, together with all collections thereon and proceeds
thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all
insurance policies
required to be maintained pursuant to this Agreement and any
proceeds thereof,
(iv) the Depositor's rights under the Servicing Agreement and the
Mortgage Loan
Purchase Agreement (including any security interest created
thereby) and (v) the
Servicer Custodial Account, the Master Servicer Custodial Account
and the
Distribution Account such assets that are deposited therein from
time to time
and any investments thereof, together with any and all income,
proceeds and
payments with respect thereto.
Trustee: _____________, and its successors-in-interest and, if a
successor trustee is appointed hereunder, such successor, as
trustee.
Trustee Fee: With respect to each Mortgage Loan, a monthly fee paid
to the Trustee out of interest collections received from the
related Mortgage
Loan calculated at the Trustee Fee Rate on the Stated Principal
Balance of the
Mortgage Loan as of the Due Date in the month preceding the month
of the related
Distribution Date.
Trustee Fee Rate: A per annum rate equal to ___%.
-25-
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).
VA: The Department of Veterans Affairs, formerly known as the
Veterans Administration, or any successor thereto.
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 and (b) 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.
Section 1.02. Interest Calculations. [All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months.
All dollar
amounts calculated hereunder shall be rounded to the nearest penny
with one-half
of one penny being rounded down.]
Section 1.03. Fiscal Year. The fiscal year of the Trust will be the
calendar year.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells,
transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf
of the Trust
for the benefit of the Certificateholders, without recourse, all
the right,
title and interest of the Depositor in and to the Mortgage Loans
and the related
Mortgage Files, including all interest and principal received on or
with respect
to the Mortgage Loans (other than payments of principal and
interest due and
payable on the Mortgage Loans on or before the Cut-off Date) and
the Depositor's
rights under the Mortgage Loan Purchase Agreement, including the
rights of the
Depositor as assignee of the Sponsor with respect to the Sponsor's
rights under
the Servicing Agreement. The foregoing sale, transfer, assignment
and set over
does not and is not intended to result in a creation of an
assumption by the
Trustee of any obligation of the Depositor or any other Person in
connection
with the Mortgage Loans or any agreement or instrument relating
thereto, except
as specifically set forth herein. It is agreed and understood by
the parties
hereto that it is not intended that any
-26-
mortgage loan be included in the Trust that is a "High-Cost Home
Loan" as
defined in any of (i) the New Jersey Home Ownership Act effective
November 27,
2003, (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004,
(iii) the Massachusetts Predatory Home Loan Practices Act effective
November 7,
2004 or (iv) the Indiana Home Loan Practices Act, effective January
1, 2005.
(b)
In connection with such transfer and assignment, the
Depositor shall deliver or cause 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
___________________,
as trustee for the holders of Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 20___-___, without recourse,"
with all
necessary intervening endorsements showing a complete chain of
endorsement
from the originator to the Trustee (each such endorsement being
sufficient
to transfer all right, title and interest of the party so
endorsing, as
noteholder or assignee thereof, in and to that Mortgage Note) and,
in the
case of any Mortgage Loan originated in the State of New York
documented
by a NYCEMA, the NYCEMA, the new Mortgage Note, if applicable, the
consolidated Mortgage Note and the consolidated Mortgage;
(ii)
except as provided below, the original recorded Mortgage
with evidence of a recording thereon, or if any such Mortgage has
not been
returned from the applicable recording office or has been lost, or
if such
public recording office retains the original recorded Mortgage, a
copy of
such Mortgage certified by the 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 "_____________________, as
trustee for
the holders of Banc of America Funding Corporation Mortgage
Pass-Through
Certificates, Series 20___-___" (which may be included in a blanket
assignment or assignments), together with, except as provided
below,
originals of all interim recorded assignments of such mortgage or a
copy
of such interim assignment certified by the Servicer (which may be
part of
a blanket certification) as being a true and complete copy of the
original
recorded intervening assignments of Mortgage (each such assignment,
when
duly and validly completed, to be in recordable form and sufficient
to
effect the assignment of and transfer to the assignee thereof,
under the
Mortgage to which the assignment relates); provided that, if the
related
Mortgage has not been returned from the applicable public recording
office, such Assignment of Mortgage may exclude the information to
be
provided by the recording office; and provided, further, if the
related
Mortgage has been recorded in the name of Mortgage Electronic
Registration
Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage
in favor
of the Trustee will be required to be prepared or delivered and
instead,
the Master Servicer shall enforce the obligations of the 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
-27-
of the system of recording transfers of beneficial ownership of
mortgages
maintained by MERS;
(iv)
the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording
thereon, if
any;
(v)
any of (A) the original or duplicate original mortgagee
title insurance policy and all riders thereto; (B) a title search
showing
no lien (other than standard exceptions) on the Mortgaged Property
senior
to the lien of the Mortgage or (C) an opinion of counsel of the
type
customarily rendered in the applicable jurisdiction in lieu of a
title
insurance policy;
(vi)
the original of any guarantee executed in connection with
the Mortgage Note;
(vii)
for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of
being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable
title
insurance company, closing/settlement/escrow agent or company or
closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii)
the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix)
for each Mortgage Loan secured by Cooperative Stock, the
originals of the following documents or instruments:
(A)
The stock certificate;
(B)
The stock power executed in blank;
(C)
The executed proprietary lease;
(D)
The executed recognition agreement;
(E)
The executed assignment of recognition agreement, if
any;
(F)
The executed UCC-1 financing statement with evidence
of recording thereon; and
(G)
Executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form suitable
for recordation).
provided, however, that on the Closing Date, with respect to item
(iii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the
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Trustee or the related 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 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), as
applicable, satisfying the requirements of clause (ii), (iii), (iv)
or (v)
above, respectively, concurrently with the execution and delivery
hereof because
such document or documents have not been returned from the
applicable public
recording office in the case of clause (ii), (iii) or (iv) above,
or because the
title policy, if applicable, has not been delivered to any of the
Servicer, the
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 the 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 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 the
Officer's Certificate to such effect to the Trustee. The Depositor
shall forward
or cause to be forwarded to the Trustee or the Custodian, on behalf
of the
Trustee, 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 Servicer
to the
Trustee or the 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.
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. As
set forth on Exhibit L attached hereto is a list of all states
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where recordation is required by either Rating Agency to obtain the
initial
ratings of the Certificates. The Securities Administrator, the
Trustee and the
Custodian may rely and shall be protected in relying upon the
information
contained in such Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above
documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause
the Servicer
to remit to the Master Servicer for deposit in the Master Servicer
Custodial
Account the portion of such payment that is required to be
deposited in the such
account pursuant to Section 3.09.
Section 2.02. Acceptance by the Trustee 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 the 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 the
Custodian to deliver to the Depositor and the Master Servicer a
certification in
the form of Exhibit M hereto (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 the Custodian, on behalf of the
Trustee, to
review, the Mortgage Files in such Person's possession, and shall
deliver, no
later than 30 days after completion of such review, to the
Depositor and the
Master Servicer a certification in the form of Exhibit N hereto
(the "Final
Certification") to the effect that, as to each Mortgage Loan listed
in the
Mortgage Loan Schedule, except as may be specified in a list of
exceptions
attached to such Final Certification, such Mortgage File contains
all of the
items required to be delivered pursuant to Section 2.01(b). In
performing any
such review, the Trustee and the Custodian may conclusively rely on
the
purported genuineness of any such document and any signature
thereon.
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a Mortgage File which does not
meet the
requirements of Section 2.01 or is omitted from such Mortgage File,
or if the
Depositor, the Master Servicer, the Securities Administrator, the
Trustee or the
Custodian discovers a breach by the Servicer or the Sponsor of any
representation, warranty or covenant under the Servicing Agreement
or the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan
and such breach
materially adversely affects the interest of the Certificateholders
in the
related Mortgage Loan (provided that any such breach that causes
the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3)
of the Code shall be deemed to materially and adversely affect the
interests of
the Certificateholders), then such party shall promptly so notify
or cause the
Custodian to promptly so notify the Master Servicer, the Sponsor,
the Servicer
and the Depositor of such failure to meet the requirements of
Section 2.01 or of
such breach and request that the Servicer or the Sponsor, as
applicable, deliver
such missing documentation or cure such defect breach within 90
days of its
discovery or its receipt of notice of any such
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defect or breach. If the Sponsor or the Servicer, as the case may
be, does not
deliver such missing documents or cure such breach in all material
respects
during such period, the Trustee shall enforce the Servicer's or
Sponsor's
obligation, as the case may be, under the Servicing Agreement or
the Mortgage
Loan Purchase Agreement, as applicable, and cause the Servicer or
Sponsor, as
applicable, to either (a) solely in the case of the Sponsor,
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 or the Custodian's
review of the Mortgage Files is limited solely to confirming that
the documents
listed in Section 2.01 have been received and further confirming
that any and
all documents delivered pursuant to Section 2.01 appear on their
face to have
been executed and relate to the 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 the
Custodian shall have any responsibility for determining whether any
document is
valid and binding, whether the text of any assignment or
endorsement is in
proper or recordable form, whether any document has been recorded
in accordance
with the requirements of any applicable jurisdiction, or whether a
blanket
assignment is permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of the Servicer or the Sponsor, the Trustee shall enforce
the rights of
the Trust under the Servicing Agreement and the Mortgage Loan
Purchase Agreement
for the benefit of the Certificateholders. In the event of a breach
of the
representations or warranties with respect to the Mortgage Loans
set forth in
the Servicing Agreement, the Trustee shall enforce the right of the
Trust to be
indemnified for such breach of representation or warranty. In
addition, if a
breach of a representation with respect to a Mortgage Loan set
forth in clauses
([k]) or ([o]) of paragraph [3] or clauses ([f]) or ([oo]) of
paragraph [4] of
the Mortgage Loan Purchase Agreement occurs as a result of a
violation of an
applicable predatory or abusive lending law, the Trustee shall
enforce the right
of the Trust to reimbursement by the 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
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Servicer does not so reimburse the Trust. It is understood and
agreed that,
except for any indemnification provided in the Servicing Agreement
and the
payment of any Reimbursement Amount, the obligation of the Servicer
or the
Sponsor to cure or to repurchase (or in the case of the Sponsor, 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 the Servicer or
the Sponsor
in respect of such omission, defect or breach available to the
Trustee on behalf
of the Certificateholders.
With respect to the representations and warranties relating to the
Mortgage Loans set forth in the Mortgage Loan Purchase Agreement
that are made
to the best of the 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
set forth in the Mortgage Loan Purchase Agreement shall survive
delivery of the
Mortgage Files to the Trustee or the Custodian and shall inure to
the benefit of
the Certificateholders notwithstanding any restrictive or qualified
endorsement
or assignment. It is understood and agreed that the obligations of
the 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 the Servicer with respect to
the Mortgage Loans in the Servicing Agreement, which have been
assigned to the
Trustee hereunder, were made as of the date specified in the
Servicing
Agreement. To the extent that any fact, condition or event with
respect to a
Mortgage Loan constitutes a breach of both (i) a representation or
warranty of
the Servicer under the Servicing Agreement and (ii) a
representation or warranty
of the 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
to enforce the obligations of the Servicer under any applicable
representation
or warranty made by it. The Trustee acknowledges 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 Servicer in the Servicing Agreement, without
regard to
whether the Servicer fulfills its contractual obligations in
respect of such
representation or warranty. The Trustee further acknowledges that
the Depositor
shall have no obligation or liability with respect to any breach of
any
representation or warranty with respect to the Mortgage Loans
(except as set
forth in Section 2.04) under any circumstances.
With respect to each Substitute Mortgage Loan, the Sponsor shall
deliver to the Trustee (or Custodian on behalf of the Trustee), for
the benefit
of the Certificateholders, the
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Mortgage Note, the Mortgage, the related Assignment of Mortgage
(except for any
Mortgage which has been recorded in the name of MERS or its
designee), and such
other documents and agreements as are otherwise required by Section
2.01, with
the Mortgage Note endorsed and the Mortgage assigned as required by
Section
2.01. No substitution is permitted to be made in any calendar month
after the
Determination Date for such month. Monthly Payments due with
respect to any such
Substitute Mortgage Loan in the month of substitution shall not be
part of the
Trust Estate and will be retained by the Depositor. 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 has substituted a Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of each
Mortgage Loan
that has become a Defective Mortgage Loan and the substitution of
the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the
amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee
and the
Custodian. Upon such substitution, each Substitute Mortgage Loan
shall be
subject to the terms of this Agreement in all respects, and the
Sponsor shall be
deemed to have made to the Trustee with respect to such Substitute
Mortgage
Loan, as of the date of substitution, the representations and
warranties made
pursuant to paragraph 4 of the Mortgage Loan Purchase Agreement.
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 the Custodian to release, the Mortgage File relating
to such
Defective Mortgage Loan to the Sponsor, and shall execute and
deliver at the
Sponsor's direction such instruments of transfer or assignment
prepared by the
Sponsor, in each case without recourse, as shall be necessary to
vest title in
the Sponsor, 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 Sponsor 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 the Sponsor, as of the date of
substitution is
less than the aggregate Stated Principal Balance of all such
Defective Mortgage
Loans substituted by the Sponsor (after application of the
principal portion of
the Monthly Payments due in the month of substitution) (the
"Substitution
Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed
Advances with respect to such Defective Mortgage Loans shall be
remitted by the
Sponsor to the Master Servicer for deposit to the Master Servicer
Custodial
Account on or before the [18th] 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 the 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 the 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.
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The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any
such
documents, instruments, certificates or other papers to determine
that they are
genuine, enforceable, or appropriate for the represented purpose or
that they
are other than what they purport to be on their face or (ii) to
determine
whether any Mortgage File should include any of the documents
specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection
with making the
certifications required hereunder, to the extent a title search or
opinion of
counsel had been provided in lieu of a title policy for any
Mortgage Loan, the
Trustee or the 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 and shall not be deemed to have certified that
the content of
such title search or opinion of counsel is sufficient to meet the
requirements
of Section 2.01(b)(v).
Section 2.03. Representations and Warranties 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 [insert form and state of
organization] and has all licenses necessary to carry on its
business as
now being conducted and is licensed, qualified and in good standing
in
each of the states where a Mortgaged Property securing a Mortgage
Loan is
located if the laws of such state require licensing or
qualification in
order to conduct business of the type conducted by the Master
Servicer.
The Master Servicer has power and authority to execute and deliver
this
Agreement and to perform in accordance herewith; the execution,
delivery
and performance of this Agreement (including all instruments of
transfer
to be delivered pursuant to this Agreement) by the Master Servicer
and the
consummation of the transactions contemplated hereby have been duly
and
validly authorized. This Agreement, assuming due authorization,
execution
and delivery by the other parties hereto, evidences the valid,
binding and
enforceable obligation of the Master Servicer, subject to
applicable law
except as enforceability may be limited by (A) bankruptcy,
insolvency,
liquidation, receivership, moratorium, reorganization or other
similar
laws affecting the enforcement of the rights of creditors and (B)
general
principles of equity, whether enforcement is sought in a proceeding
in
equity or at law. All requisite corporate action has been taken by
the
Master Servicer to make this Agreement valid and binding upon the
Master
Servicer in accordance with its terms.
(ii)
No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having jurisdiction over the Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or will,
prior to
the Closing Date, be obtained.
(iii)
The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master
Servicer
and will not result in the breach of any term or provision of the
charter
or by-laws of the Master Servicer or result in the breach of any
term or
provision of, or conflict with or constitute a default under or
result in
the acceleration of any obligation under, any agreement, indenture
or
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loan or credit agreement or other instrument to which the Master
Servicer
or its property is subject, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Master Servicer
or its
property is subject.
(iv)
There is no action, suit, proceeding or investigation
pending or, to the best knowledge of the Master Servicer,
threatened
against the Master Servicer which, either individually or in the
aggregate, would result in any material adverse change in the
business,
operations, financial condition, properties or assets of the Master
Servicer, or in any material impairment of the right or ability of
the
Master Servicer to carry on its business substantially as now
conducted or
which would draw into question the validity of this Agreement or
the
Mortgage Loans or of any action taken or to be taken in connection
with
the obligations of the Master Servicer contemplated herein, or
which would
materially impair the ability of the Master Servicer to perform
under the
terms of this Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the
Trustee for
the benefit of the Certificateholders. Upon discovery by any of the
Depositor,
the Master Servicer, the Securities Administrator or the Trustee of
a breach of
any of the representations and warranties set forth in this Section
2.03, the
party discovering such breach shall give prompt written notice to
the other
parties.
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 an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the
respective Mortgage
Files to the Trustee or the Custodian and shall inure to the
benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement
or assignment.
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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
any such breach that causes the Mortgage Loan not to be a
"qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code shall be
deemed to
materially and adversely affect the interests of the
Certificateholders. Within
90 days of its discovery or its receipt of notice of any such
breach, the
Depositor shall cure such breach in all material respects or shall
either (i)
repurchase the Mortgage Loan or any property acquired in respect
thereof from
the Trustee at a price equal to the Purchase Price or (ii) if
within two years
of the Closing Date, substitute for such Mortgage Loan in the
manner described
in Section 2.02; provided that if the breach would cause the
Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3)
of the Code,
any such repurchase or substitution must occur within 90 days from
the date the
breach was discovered. The Purchase Price of any repurchase
described in this
paragraph and the Substitution Adjustment Amount, if any, shall be
remitted to
the Master Servicer for deposit to the Master Servicer Custodial
Account. It is
understood and agreed that, except with respect to the second
preceding
sentence, the obligation of the Depositor to repurchase or
substitute for any
Mortgage Loan or Mortgaged Property as to which such a breach has
occurred and
is continuing shall constitute the sole remedy respecting such
breach available
to Certificateholders, or to the Trustee on behalf of
Certificateholders, and
such obligation shall survive until termination of the Trust
hereunder.
Section 2.05. Designation of Interests in the REMIC. The Depositor
hereby designates the Classes of Senior Certificates (other than
the Class A-PO
and Class A-R Certificates) and the Classes of Subordinate
Certificates as
"regular interests" and the Class A-R Certificate as the single
class of
"residual interest" in the 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 the 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
REMIC is
____________ ___, 20___.
Section 2.08. Execution and Delivery of Certificates. The
Securities
Administrator has executed and delivered to or upon the order of
the Depositor,
in exchange for the Mortgage Loans, together with all other assets
included in
the definition of "Trust Estate," receipt of which is hereby
acknowledged,
Certificates in authorized denominations which evidence ownership
of the entire
Trust Estate.
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ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicing of the Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall supervise, monitor and oversee the obligations of the
Servicer to service
and administer the Mortgage Loans in accordance with the terms of
the Servicing
Agreement and shall have full power and authority to do any and all
things which
it may deem necessary or desirable in connection with such master
servicing and
administration. In performing its obligations hereunder, the Master
Servicer
shall act in a manner consistent with this Agreement, subject to
the prior
sentence, and with Customary Servicing Procedures. Furthermore, the
Master
Servicer shall oversee and consult with the Servicer as necessary
from time to
time to carry out the Master Servicer's obligations hereunder,
shall receive,
review and evaluate all reports, information and other data
provided to the
Master Servicer by the Servicer and shall cause the Servicer to
perform and
observe the covenants, obligations and conditions to be performed
or observed by
the Servicer under the Servicing Agreement. The Master Servicer
shall
independently and separately monitor the Servicer's servicing
activities with
respect to each Mortgage Loan, reconcile the results of such
monitoring with
such information provided in the previous sentence on a monthly
basis and
coordinate corrective adjustments to the Servicer's and the Master
Servicer's
records, and based on such reconciled and corrected information,
prepare the
Master Servicer's Certificate and any other information and
statements required
hereunder. The Master Servicer shall reconcile the results of its
Mortgage Loan
monitoring with the actual remittances of the Servicer to the
Master Servicer
Custodial Account pursuant to the Servicing Agreements.
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, the Master Servicer shall
enforce the
obligations of the Servicer to collect all payments due under the
terms and
provisions of the Mortgage Loans when the same shall become due and
payable to
the extent such procedures shall be consistent with the Servicing
Agreement.
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.
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Section 3.02. Monitoring of Servicer.
(a)
The Master Servicer shall be responsible for reporting to
the Trustee, the Securities Administrator and the Depositor the
compliance by
the Servicer with its duties under the Servicing Agreement. In the
review of the
Servicer's activities, the Master Servicer may rely upon an
officer's
certificate of the Servicer with regard to such Servicer's
compliance with the
terms of the Servicing Agreement. In the event that the Master
Servicer, in its
judgment, determines that the Servicer should be terminated in
accordance with
the Servicing Agreement, or that a notice should be sent pursuant
to 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 Trustee and the
Certificateholders, shall enforce the obligations of the Servicer
under the
Servicing Agreement, and shall, in the event that the Servicer
fails to perform
its obligations in accordance with the Servicing Agreement, subject
to the
preceding paragraph, terminate the rights and obligations of the
Servicer
thereunder and act as successor Servicer of the Mortgage Loans
under the
Servicing Agreement or cause the Trustee to enter in to a new
Servicing
Agreement with a successor Servicer selected by the Master
Servicer; provided,
however, it is understood and acknowledged by the parties hereto
that there will
be a period of transition (not to exceed 90 days) before the actual
servicing
functions can be fully transferred to such successor Servicer. Such
enforcement,
including, without limitation, the legal prosecution of claims,
termination of
the Servicing Agreement and the pursuit of other appropriate
remedies, shall be
in such form and carried out to such an extent and at such time as
the Master
Servicer, in its good faith business judgment, would require were
it the owner
of the related Mortgage Loans. The Master Servicer and Trustee, as
applicable,
shall pay the costs of such enforcement at its own expense, and
shall be
reimbursed therefor only (i) from a general recovery resulting from
such
enforcement to the extent, if any, that such recovery exceeds all
amounts due in
respect of the related Mortgage Loan or (ii) from a specific
recovery of costs,
expenses or attorneys fees against the party whom such enforcement
is directed,
provided that the Master Servicer and the Trustee, as applicable,
shall not be
required to prosecute or defend any legal action except to the
extent that the
Master Servicer or the Trustee, as applicable, shall have received
reasonable
indemnity for its costs and expenses in pursuing such action.
(c)
To the extent that the costs and expenses of the Master
Servicer or the Trustee, as applicable, related to any termination
of the
Servicer, appointment of a successor Servicer or the transfer and
assumption of
servicing by the Master Servicer or the Trustee, as applicable,
with respect to
the Servicing Agreement (including, without limitation, (i) all
legal costs and
expenses and all due diligence costs and expenses associated with
an evaluation
of the potential termination of the Servicer as a result of an
Event of Default
by the Servicer and (ii) all costs and expenses associated with the
complete
transfer of servicing, including all servicing files and all
servicing data and
the completion, correction or manipulation of such servicing data
as may be
required by the successor Servicer to correct any errors or
insufficiencies in
the servicing data or otherwise to enable the successor Servicer to
service the
Mortgage Loans in accordance with the Servicing Agreement) are not
fully and
timely
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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.
(d)
To the extent that any Servicing Transfer Costs 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.
(e)
The Master Servicer shall require the Servicer to comply
with the remittance requirements and other obligations set forth in
the
Servicing Agreement.
(f)
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.
(g)
Notwithstanding the foregoing, to the extent the Master
Servicer engages any affiliate or third party vendor in connection
with the
performance of any of its duties under this Agreement, the Master
Servicer shall
immediately notify the Depositor in writing of such engagement. To
the extent
the Depositor notifies the Master Servicer and the Trustee that it
has
determined that any such affiliate or third party vendor is a
Servicing Function
Participant, the Master Servicer shall cause such Servicing
Function Participant
to prepare a separate assessment and attestation report, as
contemplated by
Section 3.20 of this Agreement and deliver such report to the
Securities
Administrator as set forth in Section 3.22 of this Agreement. In
addition, to
the extent the Depositor notifies the Master Servicer and the
Trustee that it
has determined that any such Servicing Function Participant would
be a
"servicer" within the meaning of Item 1101 of Regulation AB and
meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB (an
"Additional
Servicer"), the Master Servicer shall cause such Additional
Servicer to prepare
a separate compliance statement as contemplated by Section 3.19 of
this
Agreement and deliver such statement to the Securities
Administrator as set
forth in Section 3.22 of this Agreement.
In addition, if the Depositor determines any such Servicing
Function
Participant would be a "servicer" within the meaning of Item 1101
of Regulation
AB, the Master Servicer shall cause such Servicing Function
Participant to
provide the Depositor and the Securities Administration the
information required
by Section 1108(b) and 1108(c) of Regulation AB within two Business
Days
following such engagement. To the extent the Master Servicer
terminates any such
Servicing Function Participant that the Depositor has determined is
a "servicer"
within the meaning of Item 1101 of Regulation AB, the Master
Servicer shall
provide the Depositor and the Securities Administrator the
information required
to enable the Securities Administrator to accurately and timely
report such
event under Item 6.02 of Form 8-K (if the Trust's Exchange Act
reporting
requirements have not been suspended pursuant to Section 15(d) of
the Exchange
Act as set forth in Section 3.22(g)
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
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Master Servicer against losses resulting from dishonest or
fraudulent acts
committed by the Master Servicer's personnel, any employees of
outside firms
that provide data processing services for the Master Servicer, and
temporary
contract employees or student interns. No provision of this Section
3.03
requiring such fidelity bond and errors and omissions insurance
shall diminish
or relieve the Master Servicer from its duties and obligations as
set forth in
this Agreement. The minimum coverage under any such bond and
insurance policy
shall be at least equal to the corresponding amounts required by
Fannie Mae in
the Fannie Mae Servicing Guide or by Freddie Mac in the Freddie Mac
Sellers' &
Servicers' Guide, as amended or restated from time to time, or in
an amount as
may be permitted to the Master Servicer by express waiver of Fannie
Mae or
Freddie Mac. In the event that any such policy or bond ceases to be
in effect,
the Master Servicer shall obtain a comparable replacement policy or
bond from an
insurer or issuer, meeting the requirements set forth above as of
the date of
such replacement.
Section 3.04. Access to Certain Documentation.
The Master Servicer shall provide, and the Master Servicer shall
cause the Servicer to provide in accordance with the Servicing
Agreement, to the
OCC, the OTS, the FDIC and to comparable regulatory authorities
supervising
Holders of Certificates and the examiners and supervisory agents of
the OCC, the
OTS, the FDIC and such other authorities, access to the
documentation required
by applicable regulations of the OCC, the OTS, the FDIC and such
other
authorities with respect to the Mortgage Loans. Such access shall
be afforded
without charge, but only upon reasonable and prior written request
and during
normal business hours at the offices designated by the Master
Servicer and the
Servicer. In fulfilling such request for access, the Master
Servicer shall not
be responsible to determine the sufficiency of any information
provided by the
Servicer. Nothing in this Section 3.04 shall limit the obligation
of the Master
Servicer and the Servicer to observe any applicable law and the
failure of the
Master Servicer or the Servicer to provide access as provided in
this Section
3.04 as a result of such obligation shall not constitute a breach
of this
Section 3.04.
Section 3.05. Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a)
The Master Servicer shall not take, or permit the Servicer
(to the extent such action is prohibited under the Servicing
Agreement) to take,
any action that would result in noncoverage under any applicable
Primary
Mortgage Insurance Policy of any loss which, but for the actions of
the Master
Servicer or Servicer, would have been covered thereunder. The
Master Servicer
shall use its best reasonable efforts to cause the Servicer (to the
extent
required under the Servicing Agreement) to keep in force and effect
(to the
extent that the Mortgage Loan requires the Mortgagor to maintain
such
insurance), primary mortgage insurance applicable to the Mortgage
Loan in
accordance with the provisions of this Agreement and the Servicing
Agreement, as
applicable. The Master Servicer shall not, and shall not permit the
Servicer (to
the extent required under the Servicing Agreement) to, cancel or
refuse to renew
any such Primary Mortgage Insurance Policy that is in effect at the
date of the
initial issuance of the Mortgage Note and is required to be kept in
force
hereunder except in accordance with the provisions of this
Agreement and the
Servicing Agreement, as applicable.
(b)
The Master Servicer agrees to present, or to cause the
Servicer (to the extent required under the Servicing Agreement) to
present, on
behalf of the Trustee and the
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Certificateholders, claims to the insurer under any Primary
Mortgage Insurance
Policies and, in this regard, to take such reasonable action as
shall be
necessary to permit recovery under any Primary Mortgage Insurance
Policies
respecting defaulted Mortgage Loans. Pursuant to Sections 3.08 and
3.09, any
amounts collected by the Master Servicer or the Servicer under any
Primary
Mortgage Insurance Policies shall be deposited in the Master
Servicer Custodial
Account, subject to withdrawal pursuant to Section 3.11.
Section 3.06. Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer hereunder and may, but is not obligated to,
perform, or
cause a designee to perform, any defaulted obligation of the Master
Servicer
hereunder and in connection with any such defaulted obligation to
exercise the
related rights of the Master Servicer hereunder; provided that the
Master
Servicer shall not be relieved of any of its obligations hereunder
by virtue of
such performance by the Depositor or its designee. None of the
Securities
Administrator, the Trustee or the Depositor shall have any
responsibility or
liability for any action or failure to act by the Master Servicer
and the
Securities Administrator, the Trustee or the Depositor shall not be
obligated to
supervise the performance of the Master Servicer hereunder or
otherwise.
Section 3.07. Trustee to Act as Master Servicer.
In the event the Master Servicer or any successor master servicer
shall for any reason no longer be the Master Servicer hereunder
(including by
reason of an Event of Default), the Trustee as trustee hereunder
shall within 90
days of such time, assume, if it so elects, or shall appoint a
successor Master
Servicer to assume, all of the rights and obligations of the Master
Servicer
hereunder and all of the rights and obligations of the Master
Servicer under the
Servicing Agreement, unless the Trustee elects to terminate the
Servicing
Agreement, in accordance with the terms thereof. Unless the Trustee
so elects to
terminate the Servicing Agreement, the Trustee, its designee or the
successor
master servicer for the Trustee shall be deemed to have assumed all
of the
Master Servicer's interest therein with respect to the related
Mortgage Loans
and to have replaced the Master Servicer as a party to the
Servicing Agreement,
to the same extent as if the rights and duties under the Servicing
Agreement had
been assigned to the assuming party, except that the Master
Servicer shall not
thereby be relieved of any liability or obligations under the
Servicing
Agreement, with respect to the Master Servicer's duties to be
performed prior to
its termination hereunder. Any such assumption shall be subject to
Sections 7.02
and 8.05.
The predecessor Master Servicer at its expense shall, upon request
of the Trustee, deliver to the assuming party all documents and
records relating
to the Mortgage Loans then being master serviced by such Master
Servicer and an
accounting of amounts collected and held by such 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 the rights and duties
relating to
such Mortgage Loans 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 Account and Escrow Account.
The Master Servicer shall enforce the obligation of the Servicer to
establish and maintain a Servicer Custodial Account in accordance
with the
Servicing Agreement, with records to be kept with respect thereto
on a loan by
loan basis, into which accounts shall be deposited within 48 hours
(or as of
such other time specified in the Servicing Agreement) of receipt
all collections
of principal and interest on any Mortgage Loan and all collections
with respect
to any REO Property received by the Servicer, including Principal
Prepayments,
Insurance Proceeds, Liquidation Proceeds, Recoveries and Advances
made from the
Servicer's own funds (less servicing compensation as permitted by
the Servicing
Agreement) and all other amounts to be deposited in the Servicer
Custodial
Account. The Master Servicer is hereby authorized to make
withdrawals from and
deposits to the Servicer Custodial Account for purposes required or
permitted by
this Agreement.
To the extent required by the Servicing Agreement and by the
related
Mortgage Note and not violative of current law, the Master Servicer
shall
require the Servicer to establish and maintain one or more escrow
accounts
(collectively, the "Escrow Account") and deposit and retain therein
all
collections from the Mortgagors (or Advances by the Servicer) for
the payment of
taxes, assessments, hazard insurance premiums or comparable items
for the
account of the Mortgagors. Nothing herein shall require the Master
Servicer to
compel the Servicer to establish an Escrow Account in violation of
applicable
law.
Section 3.09. Collection of Mortgage Loan Payments, Master Servicer
Custodial Account and Distribution Account.
(a)
Continuously from the date hereof until the principal and
interest on all Mortgage Loans are paid in full, the Master
Servicer shall
enforce the obligations of the Servicer to collect all payments due
under the
terms and provisions of the Mortgage Loans when the same shall
become due and
payable to the extent such procedures shall be consistent with the
Servicing
Agreement.
(b)
The Securities Administrator shall establish and maintain
the Distribution Account. The Securities Administrator shall,
promptly upon
receipt, deposit in the Distribution Account and retain therein any
amounts
which are required to be deposited in the Distribution Account by
the Securities
Administrator.
(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)
The Master Servicer shall deposit or cause to be deposited
into the Master Servicer Custodial Account, on the same Business
Day of receipt
(except as otherwise specifically provided herein), the following
payments and
collections remitted to the Master Servicer by the Servicer from
its Servicer
Custodial Account pursuant to the Servicing Agreement or otherwise
or received
by the Master Servicer in respect of the Mortgage Loans
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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 other than any Excess
Proceeds and (B) any Insurance Proceeds released from an Escrow
Account;
(iv)
any amount required to be deposited by the Master Servicer
pursuant to Section 3.09(e) in connection with any losses on
Permitted
Investments with respect to the Master Servicer Custodial Account;
(v)
any amounts relating to REO Property required to be remitted
by the Servicer;
(vi)
Periodic Advances made by the Servicer pursuant to the
Servicing Agreement (or, if applicable, by the Master Servicer or
the
Trustee pursuant to Section 3.21) and any Compensating Interest
paid by
the Servicer pursuant to the Servicing Agreement;
(vii)
all Purchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by the Servicer;
(viii)
any Recoveries relating to the Mortgage Loans; and
(ix)
any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be
deposited, it may at any time withdraw such amount from the Master
Servicer
Custodial Account, any provision herein to the contrary
notwithstanding. All
funds required to be deposited in the Master Servicer Custodial
Account shall be
held by the Master Servicer in trust for the Certificateholders
until disbursed
in accordance with this Agreement or withdrawn in accordance with
Section 3.11.
(e)
Each institution at which the Master Servicer Custodial
Account is maintained shall invest the funds therein as directed in
writing by
the Master Servicer in Permitted Investments, which shall mature
not later than
the Business Day next preceding the Distribution Date (except that
if such
Permitted Investment is an obligation of the institution that
maintains such
account, then such Permitted Investment shall mature not later than
such
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Distribution Date) and, in each case, shall not be sold or disposed
of prior to
its maturity. All such Permitted Investments shall be made in the
name of the
Trustee, for the benefit of the Certificateholders. All Master
Servicer
Custodial Account Reinvestment Income shall be for the benefit of
the Master
Servicer as part of its master servicing compensation and shall be
remitted to
the Master Servicer monthly as provided herein. The amount of any
losses
realized in the Master Servicer Custodial Account incurred in any
such account
in respect of any such investments shall promptly be deposited by
the Master
Servicer from its own funds in the Master Servicer Custodial
Account.
(f)
Each institution at which the Distribution 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 Distribution 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 Distribution Account shall be for the benefit of the
Securities
Administrator as additional compensation and the amount of any
losses realized
in the Distribution Account in respect of any such Permitted
Investments shall
promptly be deposited by the Securities Administrator from its own
funds in the
Distribution Account.
(g)
The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and the Rating Agencies of
any proposed
change of location of the Master Servicer Custodial Account not
later than 30
days after and not more that 45 days prior to any change thereof.
The Securities
Administrator shall give notice to the Depositor, the Trustee, the
Master
Servicer and the Rating Agencies of any proposed change of the
location of the
Distribution Account maintained by the Securities Administrator not
later than
30 days after and not more than 45 days prior to any change
thereof. The
creation of the Master Servicer Custodial Account and the
Distribution Account
shall be evidenced by a certification substantially in the form of
Exhibit F
hereto.
Section 3.10. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation
of
the Servicer to afford the Securities Administrator and the Trustee
reasonable
access to all records and documentation regarding the Mortgage
Loans and all
accounts, insurance information and other matters relating to this
Agreement,
such access being afforded without charge, but only upon reasonable
request and
during normal business hours at the office designated by the Master
Servicer or
the Servicer.
Section 3.11. Permitted Withdrawals from the Distribution Account,
the Master Servicer Custodial Account and the Servicer Custodial
Account.
(a)
The Securities Administrator shall withdraw funds from the
Distribution Account to reimburse the Depositor for expenses
incurred by it and
reimbursable pursuant to this Agreement, including but not limited
to, Section
7.03, to pay itself and the Trustee any
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amounts due itself or the Trustee under this Agreement and for
distributions to
Certificateholders in the manner specified in this Agreement. In
addition, the
Master Servicer may from time to time make withdrawals from the
Master Servicer
Custodial Account for the following purposes:
(i)
to pay to the Servicer (to the extent not previously
retained by it), the Servicing Fee to which they are entitled
pursuant to
the Servicing Agreement 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
Section Agreement (including, but not limited to, all amounts
provided for
under Section 9.11, other than amounts provided for in sentences
one, two
and three of Section 9.11);
(iii)
to reimburse the Servicer (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the Servicing
Agreement (or in the case of itself or the Trustee, pursuant to
Section
3.21), such right of reimbursement pursuant to this clause (iii)
being
limited first to amounts received on the Mortgage Loans in respect
of
which any such Advance was made and then limited to amounts
received on
all the Mortgage Loans;
(iv)
to reimburse the Servicer (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right
of
reimbursement pursuant to this clause (iv) being limited first to
amounts
received on the Mortgage Loans in respect of which such
Nonrecoverable
Advance was made and then limited to amounts received on all the
Mortgage
Loans;
(v)
to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(vi)
to pay to the purchaser, with respect to each Mortgage Loan
or REO Property that has been purchased pursuant to Section 2.02 or
2.04,
all amounts received thereon after the date of such purchase;
(vii)
to reimburse itself for expenses incurred by it and
reimbursable pursuant to this Agreement, including but not limited
to,
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 Distribution
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
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deposit to the Distribution Account. In no event shall the
Securities
Administrator incur liability for withdrawals from the Distribution
Account at
the direction of the Master Servicer.
(b)
On each Distribution Date, funds on deposit in the
Distribution Account shall be used to make payments on the Regular
Certificates
and the Class A-R Certificate as provided in Sections 5.01 and
5.02. The
Distribution Account shall be cleared and terminated upon
termination of this
Agreement pursuant to Section 10.01.
Section 3.12. Maintenance of Hazard Insurance and Other Insurance.
For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the Servicing Agreement to
maintain or cause to
be maintained fire, flood and hazard insurance with extended
coverage customary
in the area where the Mortgaged Property is located in accordance
with the
Servicing Agreement. It is understood and agreed that such
insurance provided
for in this Section 3.12 shall be with insurers meeting the
eligibility
requirements set forth in the Servicing Agreement and that no
earthquake or
other additional insurance is to be required of any Mortgagor or to
be
maintained on property acquired in respect of a defaulted loan,
other than
pursuant to such applicable laws and regulations as shall at any
time be in
force and as shall require such additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
Master Servicer, or by the Servicer, under any insurance policies
(other than
amounts to be applied to the restoration or repair of the property
subject to
the related Mortgage or released to the Mortgagor in accordance
with the
Servicing Agreement) shall be deposited into the Master Servicer
Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11.
Any cost
incurred by the Master Servicer or the Servicer in maintaining any
such
insurance if the Mortgagor defaults in its obligation to do so
shall be added to
the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so
permit; provided, however, that the addition of any such cost shall
not be taken
into account for purposes of calculating the distributions to be
made to
Certificateholders and shall be recoverable by the Master Servicer
or the
Servicer pursuant to Sections 3.09 and 3.11.
Section 3.13. Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the Servicing
Agreement) cause the Servicer to, prepare and present on behalf of
the Trustee
and the Certificateholders all claims under the Insurance Policies
and take such
actions (including the negotiation, settlement, compromise or
enforcement of the
insured's claim) as shall be necessary to realize recovery under
such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to the
Servicer and
remitted to the Master Servicer) in respect of such policies, bonds
or contracts
shall be promptly deposited in the Master Servicer Custodial
Account upon
receipt, except that any amounts realized that are to be applied to
the repair
or restoration of the related Mortgaged Property as a condition
precedent to the
presentation of claims on the related Mortgage Loan to the insurer
under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.14. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the Servicing Agreement and to the extent
Mortgage
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Loans contain enforceable due on sale clauses, the Master Servicer
shall cause
the Servicer to enforce such clauses in accordance with the
Servicing Agreement.
If applicable law prohibits the enforcement of a due-on-sale clause
or such
clause is otherwise not enforced in accordance with the Servicing
Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be
released from liability in accordance with the Servicing Agreement.
Section 3.15. Realization Upon Defaulted Mortgage Loans; REO
Property.
(a)
The Master Servicer shall cause the Servicer (to the extent
required under the Servicing Agreement) to foreclose upon or
otherwise
comparably convert the ownership of Mortgaged Properties securing
such of the
Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent
payments, all
in accordance with the Servicing Agreement.
(b)
With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the
Certificateholders. The
Master Servicer shall enforce the obligation of the Servicer, to
the extent
provided in the Servicing Agreement, to (i) cause the name of the
Trust to be
placed on the title to such REO Property and (ii) ensure that the
title to such
REO Property references this Agreement. The Master Servicer shall,
to the extent
provided in the Servicing Agreement, cause the Servicer to sell any
REO Property
as expeditiously as possible and in accordance with the provisions
of this
Agreement and the Servicing Agreement, as applicable. Pursuant to
its efforts to
sell such REO Property, the Master Servicer shall cause the
Servicer to protect
and conserve such REO Property in the manner and to the extent
required by the
Servicing Agreement, subject to the REMIC Provisions. In the event
that the
Trust Estate acquires any Mortgaged Property as aforesaid or
otherwise in
connection with a default or imminent default on a Mortgage Loan,
the Master
Servicer shall enforce the obligation of the Servicer to dispose of
such
Mortgaged Property within the time period specified in the
Servicing Agreement
unless the Servicer shall have applied for and received an
extension of such
period from the Internal Revenue Service, in which case the Trust
Estate may
continue to hold such Mortgaged Property for the period of such
extension.
(c)
The Master Servicer shall, to the extent required by the
Servicing Agreement, cause the Servicer to deposit all funds
collected and
received in connection with the operation of any REO Property in
the Servicer
Custodial Account.
(d)
The Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related
unreimbursed
Periodic 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 Periodic
Advances as well as any unpaid Servicing Fees may be reimbursed or
paid, as the
case may be, prior to final disposition, out of any net rental
income or other
net amounts derived from such REO Property.
(e)
The Liquidation Proceeds from the final disposition of the
REO Property, net of any payment to the Servicer as provided above
shall be
deposited in the Servicer Custodial Account on or prior to the
Determination
Date in the month following
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receipt thereof and be remitted by wire transfer in immediately
available funds
to the Servicer for deposit into the 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 the REMIC if 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 the 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 Servicer, as applicable, has agreed to indemnify and
hold harmless
the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Securities Administrator, as applicable, shall
comply with all
federal withholding requirements with respect to payments to
Certificateholders
of interest or original issue discount that the Master Servicer or
the
Securities Administrator reasonably believes are applicable under
the Code. The
consent of Certificateholders shall not be required for any such
withholding.
Without limiting the foregoing, the Master Servicer agrees that it
will not
withhold with respect to payments of interest or original issue
discount in the
case of a Certificateholder that has furnished or caused to be
furnished an
effective Form W-8 or an acceptable substitute form or a successor
form and who
is not a "10 percent shareholder" within the meaning of Code
Section
871(h)(3)(B) or a "controlled foreign corporation" described in
Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the
event the
Securities Administrator withholds any amount from interest or
original issue
discount payments or advances thereof to any Certificateholder
pursuant to
federal withholding requirements, the Securities Administrator
shall indicate
the amount withheld to such Certificateholder.
Section 3.16. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the
Master Servicer or the Servicer of a notification that payment in
full will be
escrowed in a manner customary for such purposes, the Master
Servicer or the
Servicer will immediately notify the Trustee (or, at the direction
of the
Trustee, the Custodian) by delivering, or causing to be delivered,
two copies
(one of which will be returned to the Servicer with the Mortgage
File) of a
Request for Release (which may be delivered in an electronic format
acceptable
to the Trustee and the Master Servicer or the Servicer). Upon
receipt of such
request, the Trustee or the Custodian, as applicable, shall within
seven
Business Days release the Mortgage File to the Master Servicer or
the Servicer.
The Trustee shall at the Master Servicer's or the Servicer's
direction execute
and deliver to the Master Servicer or the Servicer the request for
reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such
instrument
releasing the lien of the Mortgage relating to the Mortgage Loan,
in each case
provided by the Master Servicer or the Servicer, together with the
Mortgage Note
with written evidence of
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cancellation thereon. If the Mortgage has been recorded in the name
of MERS or
its designee, the Master Servicer shall enforce the Servicer's
obligation under
the Servicing Agreement take all necessary action to reflect the
release of the
Mortgage on the records of MERS. Expenses incurred in connection
with any
instrument of satisfaction or deed of reconveyance shall be
chargeable to the
related Mortgagor of the Mortgage Loan.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose
collection under
any Primary Mortgage Insurance Policy, any policy of flood
insurance, any
fidelity bond or errors or omissions policy, or for the purposes of
effecting a
partial release of any Mortgaged Property from the lien of the
Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or
any of the
other documents included in the Mortgage File, the Trustee or the
Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the
direction of the
Trustee, the Custodian) of a Request for Release signed by a Master
Servicing
Officer or a Servicing Officer, release the Mortgage File within
seven Business
Days to the Master Servicer or the Servicer. Subject to the further
limitations
set forth below, the Master Servicer or the Servicer shall cause
the Mortgage
Files so released to be returned to the Trustee or the Custodian,
as applicable,
when the need therefor no longer exists, unless the Mortgage Loan
is liquidated
and the proceeds thereof are deposited in the Servicer Custodial
Account, in
which case such Servicer shall deliver to the Trustee or the
Custodian, as
applicable, a Request for Release, signed by a Servicing Officer.
If the Master Servicer or Servicer at any time seeks to initiate a
foreclosure proceeding in respect of any Mortgaged Property as
authorized by
this Agreement or the Servicing Agreement, the Master Servicer or
the Servicer
shall deliver or cause to be delivered to the Trustee, for
signature, as
appropriate, any court pleadings, requests for trustee's sale or
other documents
necessary to effectuate such foreclosure or any legal action
brought to obtain
judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain
a deficiency judgment or to enforce any other remedies or rights
provided by the
Mortgage Note or the Mortgage or otherwise available at law or in
equity.
Section 3.17. Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall cause the Servicer to transmit to the Trustee (or
the Custodian
on behalf of the Trustee) as required by this Agreement and the
Servicing
Agreement all documents and instruments in respect of a Mortgage
Loan coming
into the possession of the Servicer from time to time and shall
account fully to
the Trustee for any funds received by the Master Servicer or the
Servicer or
which otherwise are collected by the Master Servicer or the
Servicer as
Liquidation Proceeds, Recoveries or Insurance Proceeds in respect
of any Loan.
All Mortgage Files and funds collected or held by, or under the
control of, the
Master Servicer or the Servicer in respect of any Mortgage Loans,
whether from
the collection of principal and interest payments or from
Liquidation Proceeds,
including but not limited to, any funds on deposit in the
Distribution Account
or the Servicer Custodial Account, shall be held by the Master
Servicer or the
Servicer for and on behalf of the Trustee and shall be and remain
the sole and
exclusive property of the Trustee, subject to the applicable
provisions of this
Agreement and the
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Servicing Agreement.
The Master Servicer also agrees that it shall not, and shall insure
that the Servicer shall not, knowingly create, incur or subject any
Mortgage
File or any funds that are deposited in the Master Servicer
Custodial Account,
the Servicer Custodial Account, the Distribution Account or any
Escrow Account,
or any funds that otherwise are or may become due or payable to the
Trustee for
the benefit of the Certificateholders, to any claim, lien, security
interest,
judgment, levy, writ of attachment or other encumbrance created by
such 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 and Servicer
Compensation.
[Master Servicing compensation in the form of Master Servicer
Custodial Account Reinvestment Income shall be remitted to or
retained by the
Master Servicer pursuant to Section 3.09(e). 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
therefore except as specifically provided in this agreement.]
Section 3.19. Annual Statement as to Compliance.
The Trustee, Securities Administrator and Master Servicer shall
deliver, and the Master Servicer shall cause each Additional
Servicer engaged by
it to deliver, in electronic form, to the Depositor, the Securities
Administrator, the Trustee and each Rating Agency on or before
March 5th of each
year, or if such day is not a Business Day the next Business Day
(with a ten
calendar day cure period, but in no event later than March 15th),
followed by a
hard copy within ten calendar days, commencing March 20__, a
certificate in the
form required by Item 1123 of Regulation AB, to the effect that (i)
an
authorized officer of the Trustee, Securities Administrator, Master
Servicer or
Additional Servicer, as the case may be, has reviewed (or a review
has been made
under his or her supervision of) such party's activities under this
Agreement,
or such other applicable agreement in the case of an Additional
Servicer, during
the prior calendar year or a portion thereof and (ii) to the best
of such
officer's knowledge, based on such review, such party has fulfilled
all of its
obligations under this Agreement, or such other applicable
agreement in the case
of an Additional Servicer, in all material respects throughout the
prior
calendar year or portion thereof 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. Promptly after
receipt of such
certificate, the Depositor shall review such certificate and, if
applicable,
consult with the Master Servicer, Securities Administrator and
Trustee as to the
nature of any failure to fulfill any obligation under the
Agreement, or such
other applicable agreement in the case of an Additional Servicer,
in any
material respect.
In addition, the Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a similar
statement to the
Securities Administrator relating to
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compliance with the Servicing Agreement.
Section 3.20. Assessments of Servicing Compliance; Registered
Public
Accounting Firm Attestation Reports.
(a)
Each of the Master Servicer, the Securities Administrator
and the Trustee shall furnish, and shall cause any Servicing
Function
Participant engaged by it to furnish, at such party's expense, to
the Depositor,
the Securities Administrator and the Trustee in electronic form,
not later than
March 5th of each year, or if such day is not a Business Day the
next Business
Day (with a ten calendar day cure period, but in no event later
than March
15th), followed by a hard copy within ten calendar days, commencing
in March
20___, a report on an assessment of compliance with the Servicing
Criteria
applicable to it that contains (A) a statement by such party of its
responsibility for assessing compliance with the Servicing Criteria
applicable
to it, (B) a statement that such party used the Servicing Criteria
to assess
compliance with the Servicing Criteria applicable to it, (C) such
party's
assessment of compliance with the Servicing Criteria applicable to
it as of an
for the fiscal year covered by the Form 10-K required to be filed
pursuant to
Section 3.22, including, if there has been any material instance of
noncompliance with the Servicing Criteria applicable to it, a
discussion of each
such failure and the nature and status thereof, and (D) a statement
that a
registered public accounting firm has issued an attestation report
on such
party's assessment of compliance with the Servicing Criteria
applicable to such
party as of an for such period.
Each such assessment of compliance report shall be addressed to the
Depositor, the Securities Administrator and the Trustee and signed
by an
authorized officer of the applicable party, and shall address each
of the
Relevant Servicing Criteria set forth on Exhibit Q hereto, or as
set forth in
the notification furnished to the Depositor, the Securities
Administrator and
the Trustee pursuant to Section 3.19(c). The Master Servicer,
Securities
Administrator and the Trustee hereby acknowledge and agree that
their respective
assessments of compliance will cover the items identified on
Exhibit Q hereto as
being covered by such party. The parties to this Agreement
acknowledge that
where a particular Servicing Criterion has multiple components,
each party's
assessment of compliance (and related attestation of compliance)
will relate
only to those components that are applicable to such party.
Promptly after
receipt of each such report on assessment of compliance, the
Depositor shall
review each such report and, if applicable, consult with the Master
Servicer,
Securities Administrator or the Trustee as to the nature of any
material
instance of noncompliance with the Servicing Criteria applicable to
it (or any
Servicing Function Participant engaged or utilized by the Master
Servicer,
Securities Administrator or the Trustee, as applicable).
(b)
Each of the Master Servicer, the Securities Administrator
and the Trustee, at its own expense, shall cause, and shall cause
any Servicing
Function Participant engaged by it, at such party's expense, to
cause, not later
than March 5th of each year or if such day is not a Business Day,
the next
Business Day (with a ten calendar day cure period), commencing in
March 20 , a
registered public accounting firm (which may also render other
services to the
Master Servicer, the Securities Administrator, the Trustee, 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
electronically a
report to the Securities Administrator, the Trustee and the
Depositor (with a
hard copy to follow within ten calendar
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days), 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 Servicing Criteria applicable to it,
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
assessment of compliance with the 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 Servicing Criteria. In
the event that
an overall opinion cannot be expressed, such registered public
accounting firm
shall state in such report why it was unable to express such an
opinion. Such
report must be available for general use and not contain restricted
use
language.
Promptly after receipt of each such accountants' attestation
report,
the Depositor shall review the report and, if applicable, consult
with the
Master Servicer, Securities Administrator or the Trustee if such
report (i)
states that a party's assessment of compliance was not fairly
stated in any
material respect or (ii) is unable to state an overall opinion.
(c)
No later than 30 days following the end of each fiscal year
for the Trust for which a Form 10-K is required to be filed, (i)
the Master
Servicer shall forward to the Securities Administrator, the Trustee
and the
Depositor the name of each Servicing Function Participant engaged
by it and what
Servicing Criteria will be addressed in the report on assessment of
compliance
prepared by such Servicing Function Participant, (ii) the
Securities
Administrator shall forward to the Trustee and the Depositor the
name of each
Servicing Function Participant engaged by it and what Servicing
Criteria will be
addressed in the report on assessment of compliance prepared by
such Servicing
Function Participant and (iii) the Trustee shall forward to the
Depositor the
name of each Servicing Function Participant engaged by it and what
Servicing
Criteria will be addressed in the report on assessment of
compliance prepared by
such Servicing Function Participant, in each case to the extent of
any change
from the prior year's notice, if any.
(d)
Beginning with fiscal year 20__ and thereafter, none of the
Master Servicer, the Securities Administrator, the Trustee or any
Servicing
Function Participant engaged by such parties shall be required to
deliver or
cause the delivery of any such assessments or attestation reports
until April
15th unless such party has received written notice from the
Depositor that a
Form 10-K is required to be filed in respect of the Trust for the
preceding
fiscal year.
Section 3.21. Advances.
The Master Servicer shall enforce the obligations of the Servicer
to
make a Periodic Advance in accordance with the Servicing Agreement.
The Servicer
shall be entitled to be reimbursed from the Master Servicer
Custodial Account
for all Advances of its own funds made pursuant to the Servicing
Agreement.
Based upon information set forth in the servicer reports, the
Master Servicer
shall inform the Securities Administrator of the amount of the
Periodic Advance
to be made by the Servicer on each applicable Advance Date no later
than the
related Remittance Date. If the Servicer fails to make any required
Advance
pursuant to the Servicing Agreement, the Master Servicer shall (i)
unless the
Master Servicer determines that such Advance would not be
recoverable in its
good faith business judgment, make such
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Advance not later than the Business Day preceding the related
Distribution Date
and (ii) to the extent such failure leads to the termination of the
Servicer and
until such time as a successor Servicer is appointed, continue to
make Advances
required pursuant to the Servicing Agreement for any Distribution
Date, within
the same time frame set forth in (i) above, unless the Master
Servicer
determines (to the extent provided in the Servicing Agreement) that
such Advance
would not be recoverable.
Section 3.22. Reports to the Securities and Exchange Commission.
(a)
The Trustee, the Securities Administrator and the Master Servicer
shall
reasonably cooperate with the Depositor to enable the Depositor to
satisfy its
reporting requirements under the Exchange Act and the parties
hereto shall
reasonably cooperate to enable the Securities and Exchange
Commission
requirements with respect to the Depositor to be met in the event
that the
Securities and Exchange Commission issues additional interpretive
guidelines or
promulgates rules or regulations, or in the event of any other
change of law
that would require reporting arrangements or the allocation of
responsibilities
with respect thereto, as described in this Section 3.22, to be
conducted or
allocated in a different manner. Without limiting the generality of
the
foregoing, the Securities Administrator shall prepare on behalf of
the Depositor
any Current Reports on Form 8-K (each, a "Form 8-K"), Distribution
Reports on
Form 10-D (each, a "Form 10-D") and Annual Reports on Form 10-K
(each, a "Form
10-K") as required by the Exchange Act and the rules and
regulations of the
Securities and Exchange Commission thereunder, the Master Servicer
shall sign
and the Securities Administrator shall file (via the Securities and
Exchange
Commission's Electronic Data Gathering and Retrieval System) such
forms on
behalf of the Depositor. Notwithstanding the foregoing, the
Depositor shall file
the Form 8-Ks in connection with the issuance of the Certificates..
(b)
Each Form 10-D shall be filed by the Securities
Administrator within 15 days after each Distribution Date and will
include a
copy of the monthly statement to Certificateholders delivered
pursuant to
Section 5.04(b) (each, a "Distribution Date Statement") for such
Distribution
Date as an exhibit thereto. In addition, the Securities
Administrator shall
include under Item 1 of each Form 10-D any information required by
Item 1121 of
Regulation AB to the extent relevant that is not included on the
Distribution
Date Statement. Any disclosure in addition to the Distribution Date
Statement
and any other information required by Item 1121 of Regulation AB
("Additional
Form 10-D Information") shall be determined by the party preparing
such
information as set forth on Exhibit R-1 hereto and the Trustee
shall compile
such disclosure pursuant to the following paragraph. The Securities
Administrator will have no duty or liability for any failure
hereunder to
determine or prepare any Additional Form 10-D Information, except
to the extent
of its obligations as set forth in the next paragraph.
As set forth on Exhibit R-1 hereto, within five calendar days after
the related Distribution Date, certain parties hereto shall be
required to
provide to the Depositor, the Securities Administrator and the
Trustee, to the
extent known by such parties, any Additional Form 10-D Information,
if
applicable. The Depositor will be responsible for all reasonable
fees and
expenses assessed or incurred by the Securities Administrator in
connection with
including any Additional Form 10-D Information on Form 10-D
pursuant to this
paragraph, including converting any such disclosure to an
EDGAR-compatible
format.
After preparing the Form 10-D, the Securities Administrator shall
forward
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electronically a draft copy of the Form 10-D to the Depositor and
the Master
Servicer for review. No later than two Business Days prior to the
15th calendar
day after the related Distribution Date, the Depositor and Master
Servicer shall
each indicate to the Securities Administrator their consent to the
form and
substance of the draft Form 10-D (which consent may be in
electronic form). 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(e). Promptly (but no later than one Business Day)
after filing with
the Securities and Exchange Commission, the Securities
Administrator will make
available on its internet website a final executed copy of each
Form 10-D. The
Securities Administrator shall have no liability for any loss,
expense, damage
or claim arising out of or with respect to any failure to properly
prepare
and/or timely file such Form 10-D, where such failure results from
the
Securities Administrator's inability or failure to obtain or
receive, on a
timely basis, any information from any party hereto (other than the
Securities
Administrator or any Servicing Function Participant utilized by the
Securities
Administrator) 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 before 90 days after the end of each fiscal year of
the Trust (or such earlier date as may be required by the Exchange
Act and the
rules and regulations of the Securities and Exchange Commission),
commencing in
20___, the Securities Administrator shall file a Form 10-K, in form
and
substance as required by applicable law or applicable Securities
and Exchange
Commission staff interpretations. 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: (i) an annual compliance statement for the Trustee, the
Securities
Administrator, the Master Servicer and each Additional Servicer, as
described
under Section 3.19, (ii)(A) the annual reports on assessment of
compliance with
Servicing Criteria for the Master Servicer, the Securities
Administrator, the
Trustee and each Servicing Function Participant, as described under
Section
3.20, and (B) if the Master Servicer's, the Securities
Administrator's, the
Trustee's or each Servicing Function Participant's report on
assessment of
compliance with Servicing Criteria described under Section 3.20
identifies any
material instance of noncompliance or is not included, disclosure
identifying
such instance of noncompliance or disclosure that such report is
not included
and an explanation thereof, as the case may be, (iii)(A) the
registered public
accounting firm attestation report for the Master Servicer, the
Securities
Administrator, the Trustee and each Servicing Function Participant,
as described
under Section 3.20, and (B) if any registered public accounting
firm attestation
report described under Section 3.20 identifies any material
instance of
noncompliance or is not included, disclosure identifying such
instance of
noncompliance or disclosure that such report is not included and an
explanation
thereof, as the case may be, and (iv) a Certification as described
in this
Section 3.22(c). 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
Information") shall be prepared by the party responsible for
preparing such
disclosure as set forth on Exhibit R-2 hereto and the Securities
Administrator
shall compile such disclosure pursuant to the following paragraph.
The
Securities Administrator will have no duty or liability for any
failure
hereunder to determine or prepare any Additional Form 10-K
Information, except
to the extent of its obligations as set forth in the next
paragraph.
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As set forth on Exhibit R-2 hereto, no later than March 1st of each
year that the Trust is subject to the Exchange Act reporting
requirements,
commencing in 20___, certain parties to this Agreement shall be
required to
provide to the Securities Administrator and the Depositor, to the
extent known
by such applicable parties, any Additional Form 10-K Information,
if applicable.
The Depositor will be responsible for all reasonable fees and
expenses assessed
or incurred by the Securities Administrator in connection with
including any
Additional Form 10-K Information on Form 10-K pursuant to this
paragraph,
including converting any such disclosure to an EDGAR-compatible
format.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a draft copy of the Form 10-K to the
Depositor and the
Master Servicer for review. No later than the close of business on
the third
Business Day prior to the 10-K filing deadline, a senior officer of
the Master
Servicer in charge of the master servicing function shall sign the
Form 10-K and
return an electronic or fax copy of such signed Form 10-K, together
with a
signed copy of the certification (the "Certification") attached
hereto as
Exhibit O and required to be included with each Form 10-K pursuant
to the
Sarbanes-Oxley Act of 2002, as amended (with an original executed
hard copy of
each to follow by overnight mail) to the Securities Administrator.
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(e). Promptly (but no later than one Business Day)
after filing with
the Securities and Exchange Commission, the Securities
Administrator will make
available on its internet website a final executed copy of each
Form 10-K. The
parties to this Agreement acknowledge that the performance by the
Securities
Administrator of its duties under this Section 3.22(c) related to
the timely
preparation and filing of Form 10-K is contingent upon such parties
(and any
Additional Servicer or Servicing Function Participant) strictly
observing all
applicable deadlines in the performance of their duties under this
Section 3.22,
Section 3.19 and Section 3.20. The Securities Administrator shall
have no
liability for any loss, expense, damage, claim arising out of or
with respect to
any failure to properly prepare and/or timely file such Form 10-K,
where such
failure results from the Securities Administrator's inability or
failure to
obtain or receive, on a timely basis, any information from any
party hereto
(other than the Securities Administrator or any Servicing Function
Participant
utilized by the Securities Administrator) needed to prepare,
arrange for
execution or file such Form 10-K, not resulting from its own
negligence, bad
faith or willful misconduct.
For so long as the Trust is subject to the reporting requirements
of
the Exchange Act, the Securities Administrator shall provide to the
Master
Servicer, on or before March 5th of each year, or if such day is
not a Business
Day the next Business Day (with a ten calendar day cure period),
followed by a
hard copy within ten days, commencing in March 20___, and otherwise
within a
reasonable period of time upon request, a certification in the form
attached
hereto as Exhibit P. In the event the Securities Administrator is
terminated or
resigns pursuant to the terms of this Agreement, such Securities
Administrator
shall provide a certification in the form attached hereto as
Exhibit P with
respect to the period of time it was subject to this Agreement. In
addition, the
Securities Administrator shall indemnify and hold harmless the
Depositor, the
Master Servicer, the Trustee, the Sponsor and their officers,
directors and
affiliates from and against any losses, damages, penalties, fines,
forfeitures,
reasonable and necessary legal fees and related costs, judgments
and other costs
and expenses arising out of or based upon any inaccuracy in (i) the
assessment
of compliance with the Servicing Criteria
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pursuant to Section 3.20 provided by the Securities Administrator
or any
Servicing Function Participant appointed by the Securities
Administrator and
(ii) the certification provided by the Securities Administrator
pursuant to this
Section 3.22(c), any breach of the obligations under Sections 3.19
and 3.22(c)
of the Securities Administrator or any Servicing Function
Participant appointed
by the Securities Administrator or the Securities Administrator's
or such
Servicing Function Participant's negligence, bad faith or willful
misconduct in
connection therewith. If the indemnification provided for herein is
unavailable
or insufficient to hold harmless the Depositor, the Master
Servicer, the
Trustee, the Sponsor and their officers, directors and affiliates
in such
proportion as is appropriate to reflect the relative fault of the
Depositor, the
Master Servicer, the Trustee, the Sponsor and each of their
officers, directors
and affiliates on the one hand and the Securities Administrator on
the other in
connection with a breach of the Securities Administrator's
obligations under
this Section 3.22(c) or the Securities Administrator's negligence,
bad faith or
willful misconduct in connection therewith.
(d)
Prior to the latest date on which the Form 10-K may be
timely filed each year, the Master Servicer shall enforce the
obligation of the
Servicer to provide the certification required pursuant to the
Servicing
Agreement.
(e)
Within four (4) Business Days after the occurrence of an
event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"),
and also 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 (such information, "Form 8-K Information") shall be
reported to the
Depositor, the Trustee and the Securities Administrator by the
parties set forth
on Exhibit R-3 hereto and compiled by the Securities Administrator
pursuant to
the following paragraph. The Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any
Form 8-K
Information or any Form 8-K, except to the extent of its
obligations as set
forth in the next paragraph.
As set forth on Exhibit R-3 hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than
12:00 noon on
the second Business Day after the occurrence of a Reportable Event
certain
parties to this Agreement shall be required to provide to the
Depositor, the
Securities Administrator and the Trustee, to the extent known by
such applicable
parties, any Form 8-K Information, if applicable. The Depositor
will be
responsible for all reasonable fees and expenses assessed or
incurred by the
Securities Administrator in connection with including any Form 8-K
Information
on Form 8-K pursuant to this paragraph, including converting any
such disclosure
to an EDGAR-compatible format.
After preparing the Form 8-K, the Securities Administrator shall
forward electronically a draft copy of the Form 8-K to the
Depositor for review,
verification and execution by the Depositor. No later than 12:00
noon on the
fourth Business Day after the Reportable Event, an officer of the
Depositor
shall sign the Form 8-K and return an electronic or fax copy of
such signed Form
8-K (with an original executed hard copy to follow by overnight
mail) to the
Securities Administrator. Promptly (but no later than one Business
Day) after
filing with the Securities and Exchange Commission, the Securities
Administrator
will make available on its internet website a final executed copy
of each Form
8-K filed by it. If a
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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(f). The Depositor acknowledges that the performance by
the
Securities Administrator of its duties under this Section 3.22(e)
related to the
timely preparation and filing of Form 8-K is contingent upon the
parties to this
Agreement and any other Person obligated to provide Form 8-K
Information as set
forth on Exhibit R-3 hereto observing all applicable deadlines in
the
performance of their duties under this Section 3.22(e). The
Securities
Administrator shall have no liability for any loss, expense, damage
or claim
arising out of or with respect to any failure to properly prepare
and/or timely
file such Form 8-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a
timely basis,
any information from any party hereto (other than the Securities
Administrator
or any Servicing Function Participant utilized by the Securities
Administrator)
needed to prepare, arrange for execution or file such Form 8-K, not
resulting
from its own negligence, bad faith or willful misconduct.
(f)
In the event that the Securities Administrator is unable to
timely file with the Securities and Exchange 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 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
notify the
Depositor and the Master Servicer by telephone. In the case of Form
10-D and
Form 10-K, the Depositor, Master Servicer, Securities Administrator
and Trustee
will cooperate to prepare and file a Form 12b-25 pursuant to Rule
12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator
will, upon
receipt of all information required to be included on Form 8-K,
file such Form
8-K. Within five calendar days following the original due date of
the Form 10-D,
the Securities Administrator shall prepare and file the related
Form 10-D.
Within 15 calendar days following the original due date of the Form
10-K, the
Securities Administrator shall prepare and file the related Form
10-K. In the
event that any previously filed Form 8-K, Form 10-D or Form 10-K
needs to be
amended, the party to this Agreement deciding that an amendment to
such Form
8-K, Form 10-D or Form 10-K is required will notify the Depositor,
the Trustee,
the Securities Administrator and the Master Servicer and such
parties will
cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A. Any
Form 12b-25 or any amendment to Form 10-D or Form 10-K shall be
signed by a
senior officer of the Master Servicer in charge of the servicing
function. Any
amendment to Form 8-K or any Form 15 (as described in Section
3.22(h)) shall be
signed by an officer of the Depositor. The Depositor and Master
Servicer
acknowledge that the performance by the Securities Administrator of
its duties
under this Section 3.22(f) related to the timely preparation and
filing of a
Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is
contingent
upon the Master Servicer and the Depositor performing their duties
under this
Section. The Securities Administrator shall have no liability for
any loss,
expense, damage, claim arising out of or with respect to any
failure to properly
prepare and/or timely file any such Form 12b-25 or any amendments
to Form 8-K,
Form 10-D or Form 10-K, where such failure results from the
Securities
Administrator's inability or failure to obtain or receive, on a
timely basis,
any information from any other party hereto (other than the
Securities
Administrator or any Servicing Function Participant utilized by the
Securities
Administrator) needed to prepare, arrange for execution or file
such Form 12b-25
or any amendments to Form 8-K, Form 10-D or Form 10-K, not
resulting from its
own negligence, bad faith or wilful misconduct.
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(g)
Upon any filing with the Securities and Exchange Commission,
the Securities Administrator shall promptly deliver or otherwise
make available
to the Depositor a copy of any such executed report, statement or
information.
(h)
The obligations set forth in paragraphs (a) through (g) of
this Section shall only app
