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EXHIBIT 4
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BANC OF AMERICA FUNDING CORPORATION,
as Depositor,
WELLS FARGO BANK, N.A.,
as Master Servicer,
WELLS FARGO BANK, N.A.,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
-----------------------
Mortgage Pass-Through Certificates
Series 2004-5
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<PAGE>
TABLE OF CONTENTS
PRELIMINARY
STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
Section 1.02 Interest
Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage
Loans..............
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer....................................................
Section 2.04 Representations and Warranties of the Depositor as
to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the
REMICs.......................
Section 2.06 Designation of Start-up
Day..................................
Section 2.07 REMIC Certificate Maturity
Date..............................
Section 2.08 Execution and Delivery of
Certificates.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage
Loans.......................
Section 3.02 Monitoring of
Servicers......................................
Section 3.03 Fidelity Bond; Errors and Omissions
Insurance................
Section 3.04 Access to Certain
Documentation..............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.....
Section 3.06 Rights of the Depositor, the Securities
Administrator and
the Trustee in Respect of the Master Servicer...............
Section 3.07 Trustee to Act as Master
Servicer............................
Section 3.08 Servicer Custodial
Accounts..................................
Section 3.09 Collection of Mortgage Loan Payments; Servicer
Custodial
Account, Master Servicer Custodial Account and
Certificate Account.........................................
Section 3.10 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.............................................
Section 3.11 Access to Certain Documentation and Information
Regarding
the Mortgage Loans..........................................
Section 3.12 Permitted Withdrawals from the Certificate Account
and
the Master Servicer Custodial Account.......................
Section 3.13 Maintenance of Hazard Insurance and Other
Insurance..........
Section 3.14 Presentment of Claims and Collection of
Proceeds.............
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements....
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO
Property......
Section 3.17 Trustee to Cooperate; Release of Mortgage
Files..............
Section 3.18 Documents, Records and Funds in Possession of the
Master
Servicer to be Held for the Trustee.........................
Section 3.19 Master Servicer
Compensation.................................
Section 3.20 Annual Statement as to
Compliance............................
Section 3.21 Annual Independent Public Accountants'
Servicing
Statement; Financial Statements.............................
Section 3.22
Advances.....................................................
Section 3.23 Reports to the Securities and Exchange
Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's
Certificate................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02 Priorities of
Distributions..................................
Section 5.03 Allocation of
Losses.........................................
Section 5.04 Statements to
Certificateholders.............................
Section 5.05 Tax Returns and Reports to
Certificateholders................
Section 5.06 Tax Matters
Person...........................................
Section 5.07 Rights of the Tax Matters Person in Respect of
the
Securities Administrator....................................
Section 5.08 REMIC Related
Covenants......................................
Section 5.09 Determination of
LIBOR.......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of
Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen
Certificates............
Section 6.04 Persons Deemed
Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the
Master
Servicer....................................................
Section 7.02 Merger or Consolidation of the Depositor or the
Master
Servicer....................................................
Section 7.03 Limitation on Liability of the Depositor, the
Master
Servicer and Others.........................................
Section 7.04 Depositor and Master Servicer Not to
Resign..................
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default............................................
Section 8.02 Remedies of
Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of
Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of the Servicer and
upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of
Successor.....................
Section 8.06 Notification to
Certificateholders...........................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities
Administrator...............
Section 9.02 Certain Matters Affecting the Trustee and the
Securities
Administrator...............................................
Section 9.03 Neither Trustee nor Securities Administrator Liable
for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee and Securities Administrator May Own
Certificates....
Section 9.05 Eligibility Requirements for Trustee and the
Securities
Administrator...............................................
Section 9.06 Resignation and Removal of Trustee and the
Securities
Administrator...............................................
Section 9.07 Successor Trustee or Securities
Administrator................
Section 9.08 Merger or Consolidation of Trustee or
Securities
Administrator...............................................
Section 9.09 Appointment of Co-Trustee or Separate
Trustee................
Section 9.10 Authenticating
Agents........................................
Section 9.11 Securities Administrator's Fees and Expenses
and
Trustee's Fees and Expenses.................................
Section 9.12 Appointment of
Custodian.....................................
Section 9.13 Paying
Agents................................................
Section 9.14 Limitation of
Liability......................................
Section 9.15 Trustee or Securities Administrator May Enforce
Claims
Without Possession of Certificates..........................
Section 9.16 Suits for
Enforcement........................................
Section 9.17 Waiver of Bond
Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All
Mortgage
Loans.......................................................
Section 10.02 Additional Termination
Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment....................................................
Section 11.02 Recordation of Agreement;
Counterparts.......................
Section 11.03 Limitation on Rights of
Certificateholders...................
Section 11.04 Governing
Law................................................
Section 11.05
Notices......................................................
Section 11.06 Severability of
Provisions...................................
Section 11.07 Certificates Nonassessable and Fully
Paid....................
Section 11.08 Access to List of
Certificateholders.........................
Section 11.09
Recharacterization...........................................
<PAGE>
EXHIBITS
Exhibit A-1-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1-A-2 Form of Face of Class 1-A-2 Certificate
Exhibit A-1-A-3 Form of Face of Class 1-A-3 Certificate
Exhibit A-1-A-4 Form of Face of Class 1-A-4 Certificate
Exhibit A-1-A-5 Form of Face of Class 1-A-5 Certificate
Exhibit A-1-A-6 Form of Face of Class 1-A-6 Certificate
Exhibit A-1-A-7 Form of Face of Class 1-A-7 Certificate
Exhibit A-1-A-8 Form of Face of Class 1-A-8 Certificate
Exhibit A-1-A-9 Form of Face of Class 1-A-9 Certificate
Exhibit A-1-A-10 Form of Face of Class 1-A-10 Certificate
Exhibit A-1-A-11 Form of Face of Class 1-A-11 Certificate
Exhibit A-1-A-12 Form of Face of Class 1-A-12 Certificate
Exhibit A-1-A-13 Form of Face of Class 1-A-13 Certificate
Exhibit A-1-A-14 Form of Face of Class 1-A-14 Certificate
Exhibit A-1-A-15 Form of Face of Class 1-A-15 Certificate
Exhibit A-1-A-16 Form of Face of Class 1-A-16 Certificate
Exhibit A-1-A-17 Form of Face of Class 1-A-17 Certificate
Exhibit A-1-A-18 Form of Face of Class 1-A-18 Certificate
Exhibit A-1-A-19 Form of Face of Class 1-A-19 Certificate
Exhibit A-1-A-20 Form of Face of Class 1-A-20 Certificate
Exhibit A-1-A-21 Form of Face of Class 1-A-21 Certificate
Exhibit A-1-A-R Form of Face of Class 1-A-R Certificate
Exhibit A-1-A-LR Form of Face of Class 1-A-LR Certificate
Exhibit 30-IO Form of Face of Class 30-IO Certificate
Exhibit 30-PO Form of Face of Class 30-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 1 of Transferee's Certificate
Exhibit G-2B Form 2 of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificates
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 [Reserved]
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2004
is
hereby executed by and among BANC OF AMERICA FUNDING
CORPORATION, as depositor
(together with its permitted successors and assigns, the
"Depositor"), WELLS
FARGO BANK, N.A., as master servicer (together with its
permitted successors and
assigns, the "Master Servicer"), WELLS FARGO BANK, N.A., as
securities
administrator (together with its permitted successors and
assigns, the
"Securities Administrator") and WACHOVIA BANK, NATIONAL
ASSOCIATION, as trustee
(together with its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained,
the
Depositor, the Master Servicer, the Securities Administrator and
the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the Trust. The Trust
Estate for federal
income tax purposes will be treated as two real estate mortgage
investment
conduits (each, a "REMIC"). The Senior Certificates (other than
the Class 1-A-R
and Class 1-A-LR Certificates) and the Class B Certificates are
referred to
collectively as the "Regular Certificates" and shall constitute
"regular
interests" in the Upper-Tier REMIC. The Class 1-A-R Certificate
shall be the
"residual interest" in the Upper-Tier REMIC and the Class 1-A-LR
Certificate
shall be the "residual interest in the Lower-Tier 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):
<PAGE>
<TABLE>
<CAPTION>
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Integral
Initial Class Pass- Multiples
Certificate Balance or Through Minimum in Excess
Classes Notional Amount Rate Denomination of Minimum
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<S> <C> <C> <C> <C>
Class 1-A-1 $27,500,000.00 5.250% $1,000 $1
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Class 1-A-2 $1,250,000.00(1) 5.500% $1,000,000 $1
--------------------------------------------------------------------------------
Class 1-A-3 $140,751,000.00 5.500% $1,000 $1
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Class 1-A-4 $4,000,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-5 $2,200,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-6 $1,480,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-7 $1,150,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-8 $1,170,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-9 $2,061,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-10 $2,310,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-11 $2,804,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-12 $2,825,000.00 5.500% $1,000 $1
--------------------------------------------------------------------------------
Class 1-A-13 $1,250,000.00 5.250% $1,000 $1
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Class 1-A-14 $1,250,000.00 5.750% $1,000 $1
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Class 1-A-15 $2,500,000.00 5.500% $1,000 $1
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Class 1-A-16 $5,005,000.00 5.000% $1,000 $1
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Class 1-A-17 $455,000.00(2) 5.500% $455,000 N/A
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Class 1-A-18 $10,307,000.00 5.500% $1,000 $1
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Class 1-A-19 $50,990,000.00 5.250% $1,000 $1
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Class 1-A-20 $5,099,000.00 (3) $1,000 $1
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Class 1-A-21 $5,099,000.00(4) (5) $1,000,000 $1
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Class 1-A-R $50.00 5.500% $50 N/A
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Class 1-A-LR $50.00 5.500% $50 N/A
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Class 30-IO $14,811,880.00(6) 5.500% $1,000,000 $1
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Class 30-PO $1,371,175.00 (7) $25,000 $1
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Class B-1 $4,262,000.00 5.500% $25,000 $1
--------------------------------------------------------------------------------
Class B-2 $1,924,000.00 5.500% $25,000 $1
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Class B-3 $825,000.00 5.500% $25,000 $1
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Class B-4 $825,000.00 5.500% $25,000 $1
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Class B-5 $687,000.00 5.500% $25,000 $1
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Class B-6 $413,374.00 5.500% $25,000 $1
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</TABLE>
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(1) The Class 1-A-2 Certificates are Interest Only Certificates,
have no Class
Certificate Balance and will not be entitled to distributions in
respect of
principal.
(2) The Class 1-A-17 Certificates are Interest Only
Certificates, have no Class
Certificate Balance and will not be entitled to distributions in
respect of
principal.
(3) During each LIBOR Based Interest Accrual Period, interest
will accrue on the
Class 1-A-20 Certificates at a per annum rate equal to (i)
0.400% plus (ii)
LIBOR, subject to a minimum rate of 0.400% and a maximum rate of
8.000%.
(4) The Class 1-A-21 Certificates are Interest Only
Certificates, have no Class
Certificate Balance and will not be entitled to distributions in
respect of
principal.
(5) During each LIBOR Based Interest Accrual Period, interest
will accrue on the
Class 1-A-21 Certificates at a per annum rate equal to (i)
7.600% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of
7.600%.
(6) The Class 3-IO Certificates are Interest Only Certificates,
have no Class
Certificate Balance and will not be entitled to distributions in
respect of
principal.
(7) The Class 30-PO Certificates are Principal Only Certificates
and will not be
entitled to distributions in respect of 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 or Notional Amount, as applicable.
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.
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.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements hereto.
Ancillary Income: All assumption fees, late payment charges and
all
other ancillary income and fees with respect to the Mortgage
Loans.
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.
BANA Servicing Agreement: Servicing Agreement, dated December
29,
2004, by and between Bank of America Funding Corporation, as
depositor, and Bank
of America, National Association, as servicer.
Book-Entry Certificate: All Classes of Certificates other than
the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the Commonwealth of
Virginia, the State
of North Carolina, the State of New York, the State of
Minnesota, the State of
Ohio, the State of Missouri, the State of Washington, the State
of California,
the state in which the master servicing offices of the Master
Servicer is
located or the state or states in which the Corporate Trust
Offices of the
Trustee and the Securities Administrator are located are
required or authorized
by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section
5.03(d).
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2004-5 that are issued
pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to Section 3.09(c) in the
name of the
Securities Administrator, on behalf of the Trustee, for the
benefit of the
Certificateholders and designated "Wells Fargo Bank, N.A., as
Securities
Administrator for Wachovia Bank, National Association, as
Trustee, in trust for
registered holders of Banc of America Funding Corporation
Mortgage Pass-Through
Certificates, Series 2004-5." The Certificate Account shall be
deemed to consist
of one sub-account referred to herein as the Upper Tier
Certificate Sub-Account.
Funds in the Certificate Account shall be held in trust for the
Holders of the
Certificates for the uses and purposes set forth in this
Agreement.
Certificate 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 Certificate
Account.
Certificate Balance: With respect to any Certificate (other
than
Class 1-A-2, Class 1-A-17, Class 1-A-21 and Class 30-IO
Certificates) at any
date, the maximum dollar amount of principal to which the Holder
thereof is then
entitled hereunder, such amount being equal to the product of
the Percentage
Interest of such Certificate and the Class Certificate Balance
of the Class of
Certificates of which such Certificate is a part. The Class
1-A-2, Class 1-A-17,
Class 1-A-21 and Class 30-IO Certificates have no Certificate
Balance.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable to the Depository and
selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a Book-Entry Certificate.
With respect
to any Definitive Certificate, the Certificateholder of such
Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for
the purpose of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor, the Master Servicer, the Servicers 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
Servicers unless one of its Responsible Officers has actual
knowledge thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class
1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13,
Class 1-A-14,
Class 1-A-15, Class 1-A-16, Class 1-A-17, Class 1-A-18, Class
1-A-19, Class
1-A-20, Class 1-A-21, Class 1-A-R, Class 1-A-LR, Class 30-IO,
Class 30-PO, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6,
as the case may
be.
Class 1-A-2 Notional Amount: As to any Distribution Date and
the
Class 1-A-2 Certificates, 4.5454545% of the Class Certificate
Balance of the
Class 1-A-1 Certificates.
Class 1-A-17 Notional Amount: As to any Distribution Date and
the
Class 1-A-17 Certificates, 9.0909091% of the Class Certificate
Balance of the
Class 1-A-16 Certificates.
Class 1-A-21 Notional Amount: As to any Distribution Date and
the
Class 1-A-21 Certificates, the Class Certificate Balance of the
Class 1-A-20
Certificates.
Class 30-IO Notional Amount: As to any Distribution Date and
the
Class 30-IO Certificates, the product of (i) aggregate Stated
Principal Balance
of the Premium Mortgage Loans on the Due Date in the month
preceding the month
of such Distribution and (ii) a fraction, (a) the numerator of
which is equal to
the weighted average of the Net Mortgage Interest Rates of the
Premium Mortgage
Loans (based on the Stated Principal Balances of the Premium
Mortgage Loans as
of the due date in the month preceding the month of such
Distribution Date)
minus 5.500% and (b) the denominator of which is equal to
5.500%.
Class B Certificates: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class (other than
the
Class 1-A-2, Class 1-A-17, Class 1-A-21 and Class 30-IO
Certificates) and any
date of determination, and subject to Section 5.03(f), the
Initial Class
Certificate Balance of such Class minus (A) the sum of (i) all
distributions of
principal made with respect thereto (including in the case of a
Class of Class B
Certificates, any principal otherwise payable to such Class of
Class B
Certificates used to pay any Class PO Deferred Amounts) and (ii)
all reductions
in Class Certificate Balance previously allocated thereto
pursuant to Section
5.03(b). The Class 1-A-2, Class 1-A-17, Class 1-A-21 and Class
30-IO
Certificates are Interest-Only Certificates and have no Class
Certificate
Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, 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
30-PO Certificates, the sum of the amounts by which the
Certificate Balance of
such Class 30-PO Certificates will be reduced on such
Distribution Date or has
been reduced on prior Distribution Dates as a result of Section
5.03(b) less the
sum of (a) the Class PO Recoveries with respect to the Mortgage
Loans for prior
Distribution Dates and (b) the amounts distributed to such Class
30-PO
Certificates 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 Amount for the Class 30-PO Certificates
for such
Distribution Date and (b) an amount equal to the sum as to each
Mortgage Loan as
to which there has been a Recovery received during the calendar
month preceding
the month of such Distribution Date, of the product of (x) the
PO Percentage
with respect to such Mortgage Loan and (y) the amount of the
Recovery with
respect to such Mortgage Loan.
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: December 29, 2004.
CMMC: Chase Manhattan Mortgage Corporation.
CMMC Servicing Agreement: The Mortgage Loan Purchase, Warranties
and
Servicing Agreement, Whole Loan Series 2004 WL-OO, dated as of
October 1, 2004,
by and between BANA and CMMC, as amended by the Assignment,
Assumption and
Recognition Agreement, dated December 29, 2004, among BANA,
BAFC, Wachovia Bank,
National Association, and CMMC.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date
and
Servicer, an amount equal to the lesser of (a) one-twelfth of
0.25% of the
aggregate Stated Principal Balance of the Mortgage Loans
serviced by such
Servicer as of the due date in the month preceding the month of
such
Distribution Date and (b) the aggregate Prepayment Interest
Shortfall for such
Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the
principal
office of the Trustee, which office at the date of the execution
of this
instrument is located at 401 South Tryon Street, Charlotte,
North Carolina,
28288-1179 Attention: Structured Finance Trust Services, BAFC,
Series 2004-5, or
at such other address as the Trustee may designate from time to
time by notice
to the Certificateholders, the Depositor, the Securities
Administrator and the
Master Servicer. With respect to the Securities Administrator,
the principal
corporate trust office of the Securities Administrator at which
at any
particular time its corporate trust business with respect to
this Agreement is
conducted, which office at the date of the execution of this
instrument is
located at 9062 Old Annapolis Road, Columbia, Maryland
21045-1951, Attention:
Corporate Trust Services - BAFC 2004-5, and for certificate
transfer purposes is
located at Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479,
Attention: Corporate Trust Services - BAFC 2004-5, or at such
other address as
the Securities Administrator may designate from time to time by
notice to the
Certificateholders, the Depositor, the Trustee and the Master
Servicer.
Corresponding Upper-Tier Class or Classes: As to the
following
Uncertificated Lower-Tier Interests, the Corresponding
Upper-Tier Class or
Classes, as follows:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
Corresponding Upper-Tier Class or
Uncertificated Upper-Tier Interest Classes
---------------------------------- -------
------------------------------------------------------------------------------------------------
<S> <C>
Class 1-A-L1 Interest Class 1-A-1 and Class 1-A-2
Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L3 Interest Class 1-A-3, Class 1-A-4, Class
1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-12,
Class 1-A-15, and Class 1-A-18 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L13 Interest Class 1-A-13 and Class 1-A-14
Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L16 Interest Class 1-A-16 and Class 1-A-17
Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L19 Interest Class 1-A-19 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L20 Interest Class 1-A-20 and Class 1-A-21
Certificates
------------------------------------------------------------------------------------------------
Class 1-A-LUR Interest Class 1-A-R Certificate
------------------------------------------------------------------------------------------------
Class 1-A-LIO Interest Class 30-IO Certificates
------------------------------------------------------------------------------------------------
Class 1-A-LPO Interest Class 30-PO Certificates
------------------------------------------------------------------------------------------------
Class B-L1 Interest Class B-1 Certificates
------------------------------------------------------------------------------------------------
Class B-L2 Interest Class B-2 Certificates
------------------------------------------------------------------------------------------------
Class B-L3 Interest Class B-3 Certificates
------------------------------------------------------------------------------------------------
Class B-L4 Interest Class B-4 Certificates
------------------------------------------------------------------------------------------------
Class B-L5 Interest Class B-5 Certificates
------------------------------------------------------------------------------------------------
Class B-L6 Interest Class B-6 Certificates
------------------------------------------------------------------------------------------------
</TABLE>
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, any Servicer or the Depositor, or any
Person directly or
indirectly controlling or controlled by or under common control
with any such
Person may be appointed Custodian.
Customary Servicing Procedures: With respect to a Servicer,
procedures (including collection procedures) that such Servicer
customarily
employs and exercises in servicing and administering mortgage
loans for its own
account and which are in accordance with accepted mortgage
servicing practices
of prudent lending institutions servicing mortgage loans of the
same type as the
Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties
are located.
Cut-Off Date: December 1, 2004.
Cut-Off Date Pool Principal Balance: The aggregate of the
Cut-Off
Date Principal Balances of the Mortgage Loans which is
$274,959,649.76.
Cut-Off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close of business on the
Cut-Off Date,
reduced by all installments of principal due on or prior thereto
whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on
the related Due
Date under the terms of such Mortgage Loan over (ii) the amount
of the monthly
payment of principal and/or interest required to be paid with
respect to such
Due Date by the Mortgagor as established by a court of competent
jurisdiction
(pursuant to an order which has become final and nonappealable)
as a result of a
proceeding initiated by or against the related Mortgagor under
the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no
such excess
shall be considered a Debt Service Reduction so long as (a) the
Servicer of such
Mortgage Loan is pursuing an appeal of the court order giving
rise to any such
modification and (b)(1) such Mortgage Loan is not in default
with respect to
payment due thereunder in accordance with the terms of such
Mortgage Loan as in
effect on the Cut-Off Date or (2) Monthly Payments are being
advanced by the
related Servicer in accordance with the terms of such Mortgage
Loan as in effect
on the Cut-Off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for pursuant to Section
2.02.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then outstanding indebtedness under
such Mortgage
Loan over (ii) the secured valuation thereof established by a
court of competent
jurisdiction (pursuant to an order which has become final and
nonappealable) as
a result of a proceeding initiated by or against the related
Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.),
pursuant to which
such Mortgagor retained such Mortgaged Property; provided that
no such excess
shall be considered a Deficient Valuation so long as (a) the
related 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 related
Servicer in accordance with the terms of such Mortgage Loan as
in effect on the
Cut-Off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the
Trust Estate.
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of the Book-Entry
Certificates or any
successor thereto appointed in accordance with this Agreement.
The Depository
shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from time to time a
Depository effects
book-entry transfers and pledges of securities deposited with
the Depository.
Determination Date: With respect to any Distribution Date and
for
each Servicer, as defined in the applicable Servicing
Agreement.
Discount Mortgage Loan: Any Mortgage Loan with a Net
Mortgage
Interest Rate as of the Cut-off Date that is less than 5.500%
per annum.
Distribution Date: The 20th day of each month beginning in
January
2005 (or, if such day is not a Business Day, the next Business
Day).
Document Transfer Event: The 60th day following the day on
which
either (i) Wells Fargo Bank is no longer the Servicer of any of
the Mortgage
Loans purchased by the Seller from Wells Fargo Bank or (ii) the
senior,
unsecured long-term debt rating of Wells Fargo & Company is
less than "BBB-" by
Fitch Ratings.
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
a federal or state chartered depository institution or trust
company the
short-term unsecured debt obligations of which (or, in the case
of a depository
institution or trust company that is the principal subsidiary of
a holding
company, the debt obligations of such holding company) have the
highest
short-term ratings of each Rating Agency at the time any amounts
are held on
deposit therein, or (ii) an account or accounts in a depository
institution or
trust company in which such accounts are insured by the FDIC (to
the limits
established by the FDIC) and the uninsured deposits in which
accounts are
otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to
the Trustee, the Securities Administrator and to each Rating
Agency, the
Certificateholders have a claim with respect to the funds in
such account or a
perfected first priority security interest against any
collateral (which shall
be limited to Permitted Investments) securing such funds that is
superior to
claims of any other depositors or creditors of the depository
institution or
trust company in which such account is maintained, or (iii) a
trust account or
accounts maintained with the trust department of a federal or
state chartered
depository institution or trust company (including the Trustee
and the
Securities Administrator), acting in its fiduciary capacity or
(iv) any other
account acceptable to each Rating Agency. Eligible Accounts may
bear interest
and may include, if otherwise qualified under this definition,
accounts
maintained with the Trustee or the Securities Administrator.
Notwithstanding
anything in the foregoing to the contrary, an account shall not
fail to be an
Eligible Account solely because it is maintained with Wells
Fargo Bank, N.A., a
wholly owned subsidiary of Wells Fargo & Co., provided that
such subsidiary or
its parent's (A) commercial paper, short-term unsecured debt
obligations or
other short-term deposits are at least "F-1" in the case of
Fitch and "A-1+" in
the case of S&P, if the deposits are to be held in the
account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at
least "AA-" in
the case of Fitch and "AA-" (or "A" (without regard to any plus
or minus), if
the short-term unsecured debt obligations are rated at least
"A-1+") in the case
of S&P, if the deposits are to be held in the account for
more than 30 days.
ERISA: The Employee Retirement Income Security Act of 1974,
as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5 and
Class
B-6 Certificate.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes,
assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard
insurance premiums
and other payments as may be required to be escrowed by the
Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or
Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously
reimbursed to the
related Servicer as Nonrecoverable Advance(s) with respect to
such Mortgage Loan
pursuant to Section 3.12(a)(iv), exceeds (i) the unpaid
principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in
which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii)
accrued interest at
the Mortgage Interest Rate from the Due Date as to which
interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up
to the Due Date
applicable to the Distribution Date immediately following the
calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates will be made
pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated by the Depositor by
written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K: As defined in Section 3.23.
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 Servicers,
(ii) does not
have any direct financial interest or any material indirect
financial interest
in the Depositor, the Trustee, the Securities Administrator, the
Master Servicer
or the Servicers or in an affiliate of any of them, and (iii) is
not connected
with the Depositor, the Trustee, the Securities Administrator,
the Master
Servicer, or the Servicers as an officer, employee, promoter,
underwriter,
trustee, partner, director or person performing similar
functions.
Initial Class Certificate Balance: As to each Class of
Certificates
(other than the Class 1-A-2, Class 1-A-17, Class 1-A-21 and
Class 30-IO
Certificates), the Class Certificate Balance set forth in the
Preliminary
Statement. The Class 1-A-2, Class 1-A-17, Class 1-A-21 and Class
30-IO
Certificates are Interest-Only Certificates and have no Initial
Class
Certificate Balance.
Initial Notional Amount: As to each Class of Interest-Only
Certificates, the Notional Amount set forth in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any 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 1-A-20 and Class 1-A-21
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. As to any
Distribution Date and
the Class 1-A-20 and Class 1-A-21 Certificates, the period from
and including
the 20th day of the calendar month preceding the calendar month
in which such
Distribution Date occurs and ending on the 19th day of the
calendar month in
which such Distribution Date occurs.
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.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no distributions of principal.
The Class 1-A-2,
Class 1-A-17, Class 1-A-21 and Class 30-IO Certificates are the
only Classes of
Interest-Only Certificates.
LIBOR: As to any Distribution Date, the arithmetic mean of
the
London Interbank offered rate quotations for one-month U.S.
Dollar deposits, as
determined by the Trustee in accordance with Section 5.10.
LIBOR Business Day: Any Business Day on which banks are open
for
dealing in foreign currency and exchange in London, England or
the City of New
York.
LIBOR Certificates: Any of the Class 1-A-20 and Class 1-A-21
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
calendar month preceding the month of such Distribution Date and
as to which the
related Servicer has certified (in accordance with the related
Servicing
Agreement) that it has received all proceeds it expects to
receive in connection
with the liquidation of such Mortgage Loan including the final
disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation
of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale
or otherwise or
amounts received in connection with any condemnation or partial
release of a
Mortgaged Property and any other proceeds received in connection
with an REO
Property, less the sum of related unreimbursed Servicing Fees
and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed as a percentage, the
numerator of
which is the outstanding principal balance of the related
Mortgage Loan at the
date of determination and the denominator of which is the
Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section
5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement,
the
assets of which consist of the Mortgage Loans, such amounts as
shall from time
to time be held in the Certificate Account (other than Ancillary
Income and
amounts held in respect of the Upper-Tier Certificate
Sub-Account), the
insurance policies, if any, relating to a Mortgage Loan and
property which
secured a Mortgage Loan and which has been acquired by
foreclosure or deed in
lieu of foreclosure.
Master Servicer: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor master servicer is
appointed
hereunder, such successor, as master servicer.
Master Servicer Custodial Account: The Eligible Account created
and
maintained by the Master Servicer pursuant to Section 3.09(b) in
the name of the
Master Servicer for the benefit of the Certificateholders and
designated "Wells
Fargo Bank, N.A., as Master Servicer, in trust for the
registered holders of
Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series
2004-5."
Master Servicer Indemnified Parties: As defined in Section
3.23(c).
Master Servicer's Certificate: The monthly report required
by
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
incurred by the Trustee in connection with the transfer of
master servicing from
a predecessor master servicer, including, without limitation,
any costs or
expenses associated with the complete transfer of all master
servicing data and
the completion, correction or manipulation of such master
servicing data as may
be required by the Trustee to correct any errors or
insufficiencies in the
master servicing data or otherwise to enable the Trustee to
master service the
Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23.
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal and/or interest on
such Mortgage Loan
which, unless otherwise specified herein, shall give effect to
any related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument
creating a
first lien on a Mortgaged Property securing a Mortgage Note or
creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on the principal balance
of such Mortgage
Loan in accordance with the terms of the related Mortgage
Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of December 29, 2004, between Bank of
America, National
Association, as seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the 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; (vii) the date on which the
first Monthly
Payment was due on the Mortgage Loan, and, if such date is not
the Due Date
currently in effect, such Due Date; (viii) the stated maturity
date; (ix) the
amount of the Monthly Payment as of the Cut-Off Date; (x) the
paid-through date;
(xi) the original principal amount of the Mortgage Loan; (xii)
the principal
balance of the Mortgage Loan as of the close of business on the
Cut-Off Date,
after application of payments of principal due on or before the
Cut-Off Date,
whether or not collected, and after deduction of any payments
collected of
scheduled principal due after the Cut-Off Date; (xiii) a code
indicating the
purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style;
(xv) a code indicating the initial Servicer; (xvi) the Appraised
Value and
(xvii) the closing date of the Mortgage Loan. With respect to
the Mortgage Loans
in the aggregate, the Mortgage Loan Schedule shall set forth the
following
information, as of the Cut-Off Date: (i) the number of Mortgage
Loans; (ii) the
current aggregate outstanding principal balance of the Mortgage
Loans; (iii) the
weighted average Mortgage Interest Rate of the Mortgage Loans;
and (iv) the
weighted average months to maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as from time to time are
held as a part
of the Trust Estate (including any Substitute Mortgage Loans and
REO Property),
the Mortgage Loans originally so held being identified in the
Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence
of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a
Mortgage
Loan, which may include Co-op Shares or residential long-term
leases.
Mortgagor: The obligor on a Mortgage Note.
National City Mortgage: National City Mortgage Co.
National City Mortgage Servicing Agreement: The Master
Seller's
Warranties and Servicing Agreement, dated as of September 1,
2003, by and among
Banc of America Mortgage Capital Corporation (and Bank of
America, National
Association, as successor thereto) and National City Mortgage,
as amended by (i)
Amendment No. 1 to Master Seller's Warranties and Servicing
Agreement, dated as
of July 1, 2004, by and among Banc of America Mortgage Capital
Corporation, Bank
of America, National Association and National City Mortgage,
(ii) the Master
Assignment, Assumption and Recognition Agreement, dated as of
July 1, 2004, by
and among Banc of America Mortgage Capital Corporation, National
City Mortgage,
Bank of America, National Association and Wachovia Bank,
National Association,
(iii) Amendment No. 2, dated as of October 1, 2004, by and
between National City
Mortgage and Bank of America, National Association and (iv) the
Assignment
Assumption and Recognition Agreement, dated as of December 29,
2004, by and
among Bank of America, National Association, Banc of America
Funding
Corporation, Wachovia Bank, National Association and National
City Mortgage.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the
first day of
the month preceding the month of the related Distribution Date
reduced by the
sum of the Servicing Fee Rate and the Securities Administrator
Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a
fraction
(expressed as a percentage), the numerator of which is the Net
Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and
the denominator
of which is 5.500% for each Discount Mortgage Loan. As to any
Mortgage Loan that
is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date, 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 each
Mortgage Loan
that was repurchased by the Seller pursuant to the Mortgage Loan
Purchase
Agreement or a Servicer pursuant to the applicable Servicing
Agreement as of
such Distribution Date, (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 a
Servicer during
the calendar month preceding the month of such Distribution
Date, (e) with
respect to each Mortgage Loan that became a Liquidated Mortgage
Loan during the
calendar month preceding the month of such Distribution Date,
the amount of
Liquidation Proceeds (excluding Excess Proceeds) allocable to
principal received
by a Servicer with respect to such Mortgage Loan during the
calendar month
preceding the month of such Distribution Date and (f) all
Principal Prepayments
on the Mortgage Loans received by a Servicer during the calendar
month preceding
the month of 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 with respect to the Mortgage Loans during
the calendar month
preceding the month of such Distribution Date less the Class PO
Recovery with
respect to the Mortgage Loans for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date,
the
amount, if any, by which the aggregate Prepayment Interest
Shortfalls exceeds
the 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 related
Servicer, will
not or, in the case of a proposed Advance, would not be
ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, or
other recoveries in
respect of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Notional Amount: With respect to (a) the Class 1-A-2
Certificates
and any date of determination, the Class 1-A-2 Notional Amount,
(b) the Class
1-A-17 Certificates and any date of determination, the Class
1-A-17 Notional
Amount, (c) the Class 1-A-21 Certificates and any date of
determination, the
Class 1-A-21 Notional Amount and (d) the Class 30-IO
Certificates and any date
of determination, the Class 30-IO Notional Amount.
Offered Certificates: The Senior, Class B-1, Class B-2 and Class
B-3
Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board, President or a Vice President
and by the
Treasurer, the Secretary or one of the Assistant Treasurers or
Assistant
Secretaries, or any other duly authorized officer of the
Depositor or the Master
Servicer, as the case may be, and delivered to the Trustee or
the Securities
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the Trustee, or
acceptable to the
Securities Administrator if such opinion is delivered to the
Securities
Administrator, who may be counsel for the Depositor or the
Master Servicer,
except that any opinion of counsel relating to the qualification
of the Trust
Estate as two separate REMICs or compliance with the REMIC
Provisions must be an
opinion of Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the corresponding
percentage described
below, as of the Closing Date:
Class B-1 1.71%
Class B-2 1.01%
Class B-3 0.70%
Class B-4 0.40%
Class B-5 0.15%
Class B-6 0.00%
Original Subordinate Certificate Balance: $8,936,374.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal Prepayment in Full prior to
such Due Date,
which did not become a Liquidated Mortgage Loan prior to such
Due Date and which
was not purchased from the Trust prior to such Due Date pursuant
to Section
2.02, Section 2.04 or Section 3.16(f).
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the
Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance of such Certificate
(or the initial
notional amount for the Class 1-A-2, Class 1-A-17, Class 1-A-21
and Class 30-IO
Certificates) by the Initial Class Certificate Balance or
Initial Notional
Amount, as applicable, of the Class of which such Certificate is
a part.
Periodic Advance: With respect to each Servicer, shall have
the
meaning given to term "Monthly Advance" in the applicable
Servicing Agreement.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United States, FHLMC, FNMA or any agency or instrumentality of
the United
States when such obligations are backed by the full faith and
credit of
the United States; provided that such obligations of FHLMC or
FNMA shall
be limited to senior debt obligations and mortgage
participation
certificates other than investments in mortgage-backed or
mortgage
participation securities with yields evidencing extreme
sensitivity to the
rate of principal payments on the underlying mortgages, which
shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing not more than one month from the date of acquisition
thereof with
a corporation incorporated under the laws of the United States
or any
state thereof rated not lower than "F-1" by Fitch and "A-1+" by
S&P;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits and bankers' acceptances (which shall each have an
original
maturity of not more than 90 days and, in the case of
bankers'
acceptances, shall in no event have an original maturity of more
than 365
days or a remaining maturity of more than 30 days) denominated
in United
States dollars of any U.S. depository institution or trust
company
incorporated under the laws of the United States or any state
thereof,
rated not lower than "F-1" by Fitch and "A-1+" by S&P;
(iv) commercial paper (having original maturities of not more
than
365 days) of any corporation incorporated under the laws of the
United
States or any state thereof which is rated not lower than "F-1"
by Fitch
and "A-1+" by S&P;
(v) investments in money market funds (including funds of
the
Trustee, the Securities Administrator or their affiliates, or
funds for
which an affiliate of the Trustee or the Securities
Administrator acts as
advisor, as well as funds for which the Trustee and its
affiliates or the
Securities Administrator and its affiliates may receive
compensation)
rated either "AAA" by Fitch (if rated by Fitch) and "AAAm G" by
S&P or
otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating Agency and, as evidenced by an Opinion of Counsel
obtained by the
Master Servicer and addressed to the Depositor and the
Securities
Administrator, will not affect the qualification of the Trust
Estate as
two separate REMICs;
provided, however, that no instrument shall be a Permitted
Investment if it
represents either (a) the right to receive only interest
payments with respect
to the underlying debt instrument or (b) the right to receive
both principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of
such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision thereof, or any agency
or
instrumentality of any of the foregoing, (ii) a foreign
government,
international organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization which is exempt from tax
imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the
Code on unrelated
business taxable income) (except certain farmers' cooperatives
described in Code
Section 521), (iv) rural electric and telephone cooperatives
described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the
income on a
Residual Certificate is allocable to a foreign permanent
establishment or fixed
base, within the meaning of an applicable income tax treaty, of
such Person or
any other Person, and (vi) any other Person so designated by the
Master Servicer
based on an Opinion of Counsel to the effect that any transfer
to such Person
may cause the Trust or any other Holder of a Residual
Certificate to incur tax
liability that would not be imposed other than on account of
such transfer. The
terms "United States," "State" and "international organization"
shall have the
meanings set forth in Code Section 7701 or successor
provisions.
Person: Any individual, corporation, limited liability
company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Physical Certificates: The Class 1-A-R and Class 1-A-LR
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 Mortgage Loan on the related Due Date, (b)
the Stated
Principal Balance, as of the date of repurchase, of each
Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement, the
Seller pursuant to
the Mortgage Loan Purchase Agreement or a Servicer pursuant to
the applicable
Servicing Agreement as of such Distribution Date or the Master
Servicer pursuant
to Section 10.01 hereof, (c) any Substitution Adjustment Amount
in connection
with any Defective Mortgage Loan received during the calendar
month preceding
the month of such Distribution Date, (d) any Liquidation
Proceeds allocable to
recoveries of principal of Mortgage Loans that are not yet
Liquidated Mortgage
Loans received by a Servicer during the calendar month preceding
the month of
such Distribution Date, (e) with respect to each Mortgage Loan
that became a
Liquidated Mortgage Loan during the calendar month preceding the
month of such
Distribution Date, the amount of Liquidation Proceeds (excluding
Excess
Proceeds) allocable to principal received by a Servicer with
respect to such
Mortgage Loan during the calendar month preceding the month of
such Distribution
Date with respect to such Mortgage Loan and (f) all Principal
Prepayments
received on the Mortgage Loans received by a Servicer during the
calendar month
preceding the month of 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
Payment on a Mortgage Loan and the principal portion of any
Monthly Payment on a
Mortgage Loan due on the Due Date in the month in which such
Distribution Date
occurs and which is received prior to the related Determination
Date and (B) all
Periodic Advances made by a Servicer (or the Master Servicer or
the Trustee, as
applicable) and payments of Compensating Interest made by the
applicable
Servicer and 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
month preceding
the month of such Distribution Date and deposited in the Master
Servicer
Custodial Account pursuant to Section 3.09(d)(i); (iv) in
connection with
Defective Mortgage Loans, as applicable, the aggregate of the
Repurchase Prices
and Substitution Adjustment Amounts received during the
preceding month of such
Distribution Date and deposited into the Master Servicer
Custodial Account
pursuant to Section 3.09(d)(vii); (v) any other amounts in the
Master Servicer
Custodial Account deposited therein pursuant to Section
3.09(d)(iv), (v) 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 (i)
amounts
permitted to be withdrawn from the Master Servicer Custodial
Account pursuant to
clauses (i) through (vii), inclusive, of Section 3.12(a).
Pool Stated Principal Balance: As to any Distribution Date,
the
aggregate Stated Principal Balances of all Mortgage Loans that
were Outstanding
Mortgage Loans at the close of business on 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 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 5.500% 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
FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled
to
distributions of principal, but to no distributions of interest.
The Class 30-PO
Certificates are the only Principal Only Certificates.
Principal Prepayment: 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.
Priority Amount: As to any Distribution Date, the lesser of (i)
the
Class Certificate Balance of the Class 1-A-1 Certificates and
(ii) the product
of (a) the Non-PO Principal Amount, (b) the Shift Percentage and
(c) the
Priority Percentage.
Priority Percentage: As to any Distribution Date, the
percentage
equivalent (carried to six places rounded up) of a fraction the
numerator of
which is the Class Certificate Balance of the Class 1-A-1
Certificates
immediately prior to such date and the denominator of which is
the Pool Stated
Principal Balance (Non-PO Portion).
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
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%.
Rate Determination Date: As to any Class of LIBOR Certificates,
the
second LIBOR Business Day prior to the beginning of the
applicable Interest
Accrual Period for such Class and such Distribution Date.
Rating Agency: Each of Fitch and S&P. If either such
organization or
a successor is no longer in existence, "Rating Agency" shall be
such nationally
recognized statistical rating organization, or other comparable
Person, as is
designated by the Depositor, notice of which designation shall
be given to the
Trustee, the Master Servicer and the Securities Administrator.
References herein
to a given rating or rating category of a Rating Agency shall
mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation, equal to (i) the
unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due
Date as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent
applied as
recoveries of interest at the Net Mortgage Interest Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan
that has become the
subject of a Deficient Valuation, if the principal amount due
under the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become
the subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Monthly Payment has been
reduced.
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: As to any Distribution Date, the sum of all
amounts
received during the calendar month preceding the month of such
Distribution Date
on each Mortgage Loan subsequent to such Mortgage Loan being
determined to be a
Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary
Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a reduction in the
amount of interest
collectible thereon for the most recently ended calendar month
as a result of
the application of the Relief Act or comparable state
legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan
for the most
recently ended calendar month is less than (ii) interest accrued
pursuant to the
terms of the Mortgage Note on the same principal amount and for
the same period
as the interest collectible on such Mortgage Loan for the most
recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within
the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is defined in Section
2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and
related provisions,
and regulations promulgated thereunder, as the foregoing may be
in effect from
time to time, as well as provisions of applicable state
laws.
REO Property: A Mortgaged Property acquired by a Servicer on
behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure
in connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased
on
any date pursuant to Section 2.02, an amount equal to (a) in the
case of the
Seller, the sum of (i) the unpaid principal balance thereof and
(ii) the unpaid
accrued interest thereon at the applicable Mortgage Interest
Rate from the Due
Date to which interest was last paid by the Mortgagor to the
first day of the
month following the month in which such Mortgage Loan became
eligible to be
repurchased and (b) in the case of a 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 applicable
Servicer
Custodial Account for distribution in the month of repurchase
and (y) if such
Servicer is servicing such Mortgage Loan under the related
Servicing Agreement,
the Servicing Fee Rate for such Mortgage Loan.
Request for Release: The Request for Release submitted by a
Servicer
to the Trustee or the Custodian on behalf of the Trustee,
substantially in the
form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be maintained from time to
time under this
Agreement in respect of such Mortgage Loan.
Residual Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee or
the
Securities Administrator, any officer of the Corporate Trust
Department of the
Trustee or the Securities Administrator, as applicable,
including any Senior
Vice President, any Vice President, any Assistant Vice
President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of
the Trustee or Securities Administrator, as applicable,
customarily performing
functions similar to those performed by any of the above
designated officers and
having responsibility for the administration of this
Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., or any successor thereto.
Securities Administrator: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities
administrator is appointed
hereunder, such successor, as securities administrator.
Securities Administrator Fee: As to any Distribution Date, an
amount
equal to one-twelfth of the Securities Administrator Fee Rate
multiplied by the
aggregate Stated Principal Balance of the Mortgage Loans as of
the close of
business on the Due Date in the month preceding the month in
which such
Distribution Date occurs.
Securities Administrator Fee Rate: With respect to each
Mortgage
Loan, 0.0250% per annum.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest, as seller of the
Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class
1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13, Class
1-A-14, Class
1-A-15, Class 1-A-16, Class 1-A-17, Class 1-A-18, Class 1-A-19,
Class 1-A-20,
Class 1-A-21, Class 1-A-R, Class 1-A-LR, Class 30-IO and Class
30-PO
Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate
Certificates 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 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) and (f) 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 set
forth below:
Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
January 20010 through December 2010 30%
January 2011 through December 2011 35%
January 2012 through December 2012 40%
January 2013 through December 2013 45%
January 2014 and thereafter 50%
Servicer: Any of BANA, National City Mortgage, SunTrust,
Washington
Mutual, CMMC and Wells Fargo Bank, each in their capacity as
servicer or
originator of the Mortgage Loans, or any successor servicer
appointed as herein
provided.
Servicer Advance Date: As to any Distribution Date, the Business
Day
preceding the Servicer Remittance Date.
Servicer Custodial Accounts: The separate accounts created
and
maintained by each of the Servicers pursuant to the applicable
Servicing
Agreement.
Servicer Remittance Date: With respect to each Servicer, shall
have
the meaning given to the term "Remittance Date" in the
applicable Servicing
Agreement.
Servicing Advance: With respect to each Servicer, shall have
the
meaning given to the term "Servicing Advances" in the applicable
Servicing
Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement,
the
National City Mortgage Servicing Agreement, the SunTrust
Servicing Agreement,
WAMU Servicing Agreement, the CMMC Servicing Agreement and the
Wells Fargo Bank
Servicing Agreement.
Servicing Fee: With respect to each Servicer, as defined in
the
applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as
defined
in the applicable Servicing Agreement.
Servicing Officer: With respect to each Servicer, as defined in
the
related Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of
the
Master Servicer or the Trustee, as applicable, related to any
termination of a
Servicer, appointment of a successor Servicer or the transfer
and assumption of
servicing by the Master Servicer or the Trustee, as applicable,
with respect to
any Servicing Agreement (including, without limitation, (i) all
legal costs and
expenses and all due diligence costs and expenses associated
with an evaluation
of the potential termination of the Servicer as a result of an
event of default
by such Servicer and (ii) any costs or expenses associated with
the complete
transfer of all servicing data and the completion, correction or
manipulation of
such servicing data as may be required by the Master Servicer or
the Trustee, as
applicable, to correct any errors or insufficiencies in the
servicing data or
otherwise to enable the Master Servicer or the Trustee, as
applicable, to
service the Mortgage Loans properly and effectively).
Shift Percentage: As to any Distribution Date, the
percentage
indicated below:
Distribution Date Occurring In Shift Percentage
------------------------------ ----------------
January 2005 through December 2009 0%
January 2010 through December 2010 30%
January 2011 through December 2011 40%
January 2012 through December 2012 60%
January 2013 through December 2013 80%
January 2014 and thereafter 100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage Loan as of such date
as specified in
the amortization schedule at the time relating thereto (before
any adjustment to
such amortization schedule by reason of any moratorium or
similar waiver or
grace period) after giving effect to any previous partial
Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with
respect to any
Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date
and irrespective of any delinquency in payment by the related
Mortgagor, and
after giving effect to any Deficient Valuation.
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) and (f)
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 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
Deleted Mortgage Loan;
(iv) have a remaining term to maturity not greater than (and not
more than one
year less than) that of the Defective Mortgage Loan; and (v)
comply with each
Mortgage Loan representation and warranty set forth in the
Mortgage Loan
Purchase Agreement and the applicable Servicing Agreement and
this Agreement.
More than one Substitute Mortgage Loan may be substituted for a
Defective
Mortgage Loan if such Substitute Mortgage Loans meet the
foregoing attributes in
the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
SunTrust: SunTrust Mortgage, Inc.
SunTrust Servicing Agreement: The Flow Sale and Servicing
Agreement,
dated as of February 1, 2004, between Banc of America Mortgage
Capital
Corporation (and Bank of America, National Association, as
successor thereto)
and SunTrust, as amended by (i) Amendment No. 1 to Flow Sale and
Servicing
Agreement, dated as of June 1, 2004, by and between Banc of
America Mortgage
Capital Corporation and SunTrust, (ii) the Master Assignment,
Assumption and
Recognition Agreement, dated September 1, 2004, by and among
Banc of America
Mortgage Capital Corporation, SunTrust, Bank of America,
National Association
and Wachovia Bank, National Association, (iii) Amendment No. 2,
dated as of
November 1, 2004, by and between Banc of America Mortgage
Capital Corporation
and SunTrust and (iv) the Assignment, Assumption and Recognition
Agreement,
dated December 29, 2004, among Bank of America, National
Association, Banc of
America Funding Corporation, Wachovia Bank, National Association
and SunTrust
Mortgage, Inc.
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 2004-5 Trust."
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets
as shall from
time to time be identified as deposited in the Servicer
Custodial Accounts in
accordance with the Servicing Agreements or the Certificate
Account, in
accordance with this Agreement, REO Property, the Primary
Mortgage Insurance
Policies and any other Required Insurance Policy.
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to a portion of which two REMIC elections are to be
made, such
entire Trust Estate consisting of: (i) such Mortgage Loans as
from time to time
are subject to this Agreement, together with the Mortgage Files
relating
thereto, and together with all collections thereon and proceeds
thereof, (ii)
any REO Property, together with all collections thereon and
proceeds thereof,
(iii) the Trustee's rights with respect to the Mortgage Loans
under all
insurance policies required to be maintained pursuant to this
Agreement and any
proceeds thereof, (iv) the Depositor's rights under the
Servicing Agreements and
the Mortgage Loan Purchase Agreement (including any security
interest created
thereby) and (v) the Servicer Custodial Accounts, the Master
Servicer Custodial
Account and the Certificate Account and such assets that are
deposited therein
from time to time and any investments thereof, together with any
and all income,
proceeds and payments with respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed
hereunder, such
successor, as trustee.
Uncertificated Lower-Tier Interest: A regular interest in
the
Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Any of
the Class 1-A-L1 Interest, Class 1-A-L3 Interest, Class 1-A-L13
Interest, Class
1-A-L16 Interest, Class 1-A-L19 Interest, Class 1-A-L20
Interest, Class 1-A-LUR
Interest, Class 1-A-LIO Interest, Class 1-A-LPO Interest, Class
B-L1 Interest,
Class B-L2 Interest, Class B-L3 Interest, Class B-L4 Interest,
Class B-L5
Interest and Class B-L6 Interest are Uncertificated Lower-Tier
Interests.
Upper-Tier Certificate: Any one of the Senior Certificates
(other
than the Class 1-A-LR Certificate) and the Subordinate
Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Securities Administrator
pursuant to
Section 3.09(g).
Upper-Tier REMIC: As defined in the Preliminary Statement,
the
assets of which consist of the Uncertificated Lower-Tier
Interests and such
amounts as shall from time to time be deemed held in the
Upper-Tier Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a
partnership, Treasury
Regulations are adopted that provide otherwise) created or
organized in or under
the laws of the United States, any state thereof or the District
of Columbia,
including an entity treated as a corporation or partnership for
federal income
tax purposes, an estate whose income is subject to United States
federal income
tax regardless of its source, or a trust if a court within the
United States is
able to exercise primary supervision over the administration of
such trust, and
one or more such U.S. Persons have the authority to control all
substantial
decisions of such trust (or, to the extent provided in
applicable Treasury
Regulations, certain trusts in existence on August 20, 1996
which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of
the
Certificates which is allocated to any Certificate. As of any
date of
determination, (a) 1% of the Voting Rights shall be allocated
collectively to
the Holders of the Residual Certificates, (b) 1% of the Voting
Rights shall be
allocated to the Holders of the Class 1-A-2 Certificates, (c) 1%
of the Voting
Rights shall be allocated to the Holders of the Class 1-A-17
Certificates, (d)
1% of the Voting Rights shall be allocated to the Holders of the
Class 1-A-21
Certificates, (e) 1% of the Voting Rights shall be allocated to
the Holders of
the Class 30-IO Certificates and (f) the remaining Voting Rights
shall be
allocated among Holders of the remaining Classes of Certificates
in proportion
to the Certificate Balances of their respective Certificates on
such date.
WAMU Sellers: Washington Mutual Bank, FA and Washington Mutual
Bank,
in their capacity as sellers under the Washington Mutual Sale
Agreement.
Washington Mutual Sale Agreement: The Amended and Restated
Mortgage
Loan Purchase and Sale Agreement, dated as of July 1, 2003, by
and between
Washington Mutual and Banc of America Mortgage Capital
Corporation , as amended
from time to time.
WAMU Servicing Agreement: The (i) Mortgage Loan Purchase and
Sale
Agreement (Amended and Restated), dated as of July 1, 2003,
among the WAMU
Sellers and Bank of America, National Association (as successor
in interest to
Banc of America Mortgage Capital Corporation), as amended by (a)
the July 2004
Amendment and (b) the Master Assignment, Assumption and
Recognition Agreement,
dated as of July 1, 2004, by and among Banc of America Mortgage
Capital
Corporation, Bank of America, National Association, and the WAMU
Sellers and
(ii) the Servicing Agreement (Amended and Restated), dated as of
July 1, 2003 by
and between Bank of America, National Association and Washington
Mutual Bank,
FA, as amended from time to time.
Wells Fargo Bank: Wells Fargo Bank, N.A., in its capacity as
Servicer under the Wells Fargo Bank Servicing Agreement.
Wells Fargo Bank Servicing Agreement: The (a) Master
Seller's
Warranties and Servicing Agreement, dated as of January 1, 2003,
by and between
Wells Fargo Bank (successor by merger to Wells Fargo Home
Mortgage, Inc.) and
Banc of America Mortgage Capital Corporation (as amended by
Amendment No. 1,
dated as of April 1, 2003, Amendment No. 2, dated as of May 1,
2003, Amendment
No. 3, dated as of July 1, 2003, Amendment No. 4, dated as of
October 1, 2003
and Amendment No. 5 dated as of May 10, 2004), (b) the
Assignment and Conveyance
Agreement, dated as of November 23, 2004, between Banc of
America Mortgage
Capital Corporation and the Wells Fargo Bank, N.A., (c) the
Master Assignment,
Assumption and Recognition Agreement, dated as of July 1, 2004,
among Banc of
America Mortgage Capital Corporation, Wells Fargo Bank, N.A.,
Bank of America,
National Association and Wachovia Bank, National Association and
(d) the
Assignment, Assumption and Recognition Agreement, dated as of
December 29, 2004,
among Bank of America, National Association, Banc of America
Funding
Corporation, Wachovia Bank, National Association and Wells Fargo
Bank, N.A.
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.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The
Depositor,
concurrently with the execution and delivery hereof, hereby
sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on
behalf of the Trust
for the benefit of the Certificateholders, without recourse, all
the right,
title and interest of the Depositor in and to the Mortgage
Loans, including all
interest and principal received on or with respect to the
Mortgage Loans (other
than payments of principal and interest due and payable on the
Mortgage Loans on
or before the Cut-Off Date), the Depositor's rights under the
Mortgage Loan
Purchase Agreement, including the rights of the Depositor as
assignee of the
Seller with respect to the Seller's rights under the Servicing
Agreements, and
the Depositor's rights under the BANA Servicing Agreement. The
foregoing sale,
transfer, assignment and set over does not and is not intended
to result in a
creation of an assumption by the Trustee of any obligation of
the Depositor or
any other Person in connection with the Mortgage Loans or any
agreement or
instrument relating thereto, except as specifically set forth
herein. It is
agreed and understood by the parties hereto that it is not
intended that any
mortgage loan be included in the Trust that is a "High-Cost Home
Loan" as
defined in either (i) the New Jersey Home Ownership Act
effective November 27,
2003, (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004 or
(iii) the Massachusetts Predatory Home Loan Practices Act
effective November 7,
2004.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to 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 Wachovia
Bank,
National Association, as trustee for holders of Banc of America
Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-5,
without
recourse," with all necessary intervening endorsements showing a
complete
chain of endorsement from the originator to the Trustee (each
such
endorsement being sufficient to transfer all right, title and
interest of
the party so endorsing, as noteholder or assignee thereof, in
and to that
Mortgage Note) and, in the case of any Mortgage Loan originated
in the
State of New York documented by a NYCEMA, the NYCEMA, the new
Mortgage
Note, if applicable, the consolidated Mortgage Note and the
consolidated
Mortgage;
(ii) except as provided below and other than with respect to
the
Mortgage Loans purchased by the Seller from Wells Fargo Bank,
the original
recorded Mortgage with evidence of a recording thereon, or if
any such
Mortgage has not been returned from the applicable recording
office or has
been lost, or if such public recording office retains the
original
recorded Mortgage, a copy of such Mortgage certified by the
applicable
Servicer (which may be part of a blanket certification) as being
a true
and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a
duly
executed Assignment of Mortgage to "Wachovia Bank, National
Association,
as trustee for the holders of Banc of America Funding
Corporation Mortgage
Pass-Through Certificates, Series 2004-5" (which may be included
in a
blanket assignment or assignments), together with, except as
provided
below and other than with respect to the Mortgage Loans
purchased by the
Seller from Wells Fargo Bank, originals of all interim
recorded
assignments of such mortgage or a copy of such interim
assignment
certified by the applicable Servicer (which may be part of a
blanket
certification) as being a true and complete copy of the original
recorded
intervening assignments of Mortgage (each such assignment, when
duly and
validly completed, to be in recordable form and sufficient to
effect the
assignment of and transfer to the assignee thereof, under the
Mortgage to
which the assignment relates); provided that, if the related
Mortgage has
not been returned from the applicable public recording office,
such
Assignment of Mortgage may exclude the information to be
provided by the
recording office; and provided, further, if the related Mortgage
has been
recorded in the name of Mortgage Electronic Registration
Systems, Inc.
("MERS") or its designee, no Assignment of Mortgage in favor of
the
Trustee will be required to be prepared or delivered and
instead, the
Master Servicer shall enforce the obligations of the applicable
Servicer
to take all actions as are necessary to cause the Trust to be
shown as the
owner of the related Mortgage Loan on the records of MERS for
purposes of
the system of recording transfers of beneficial ownership of
mortgages
maintained by MERS;
(iv) the originals of all assumption, modification,
consolidation or
extension agreements, if any, with evidence of recording
thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by
the
Seller from Wells Fargo Bank, any of (A) the original or
duplicate
original mortgagee title insurance policy and all riders
thereto; (B) a
title search showing no lien (other than standard exceptions) on
the
Mortgaged Property senior to the lien of the Mortgage or (C) an
opinion of
counsel of the type customarily rendered in the applicable
jurisdiction in
lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording indicated thereon, or, if the lease is in the process
of being
recorded, a photocopy of the lease, certified by an officer of
the
respective prior owner of such Mortgage Loan or by the
applicable title
insurance company, closing/settlement/escrow agent or company or
closing
attorney to be a true and correct copy of the lease transmitted
for
recordation;
(viii) the original of any security agreement, chattel mortgage
or
equivalent document executed in connection with the Mortgage;
and
(ix) for each Mortgage Loan secured by Co-op Shares (other than
with
respect to any Mortgage Loan secured by Co-op Shares purchased
by the
Seller from Wells Fargo Bank), the originals of the following
documents or
instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if
any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to
item (iii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the Trustee a copy of such Assignment
of Mortgage in
blank rather than in the name of the Trustee and has caused the
applicable
Servicer to retain the completed Assignment of Mortgage for
recording as
described below, unless such Mortgage has been recorded in the
name of MERS or
its designee. In addition, if the Depositor is unable to deliver
or cause the
delivery of any original Mortgage Note due to the loss of such
original Mortgage
Note, the Depositor may deliver a copy of such Mortgage Note,
together with a
lost note affidavit, and shall thereby be deemed to have
satisfied the document
delivery requirements of this Section 2.01(b). As set forth on
Exhibit L
attached hereto is a list of all states 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.
If in connection with any Mortgage Loans, the Depositor
cannot
deliver (A) the Mortgage, (B) all interim recorded assignments,
(C) all
assumption, modification, consolidation or extension agreements,
if any, or (D)
the lender's title policy, if any, (together with all riders
thereto) satisfying
the requirements of clause (ii), (iii), (iv) or (v) above,
respectively,
concurrently with the execution and delivery hereof because such
document or
documents have not been returned from the applicable public
recording office in
the case of clause (ii), (iii) or (iv) above, or because the
title policy has
not been delivered to either the related Servicer, the Seller or
the Depositor
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, 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 (1) from time to time
additional
original documents evidencing an assumption or modification of a
Mortgage Loan
and (2) any other documents required to be delivered by the
Depositor or the
applicable Servicer to the Trustee or the Custodian on the
Trustee's behalf. In
the event that the original Mortgage is not delivered and in
connection with the
payment in full of the related Mortgage Loan the public
recording office
requires the presentation of a "lost instruments affidavit and
indemnity" or any
equivalent document, because only a copy of the Mortgage can be
delivered with
the instrument of satisfaction or reconveyance, the Depositor
shall prepare,
execute and deliver or cause to be prepared, executed and
delivered, on behalf
of the Trust, such a document to the public recording
office.
Upon discovery by the Depositor or notice from Wells Fargo Bank,
the
Master Servicer or Securities Administrator that a Document
Transfer Event has
occurred, the Depositor shall, with respect to Mortgage Loans
purchased by the
Seller from Wells Fargo Bank, deliver or cause to be delivered
to the Trustee or
the Custodian, on behalf of the Trustee, within 60 days copies
(which may be in
electronic form mutually agreed upon by the Depositor and the
Trustee) of the
following additional documents or instruments to the Mortgage
File with respect
to each such Mortgage Loan; provided, however, that originals of
such documents
or instruments shall be delivered to the Trustee or Custodian,
as applicable, if
originals are required under the law in which the related
Mortgaged Property is
located in order to exercise all remedies available to the Trust
under
applicable law following default by the related Mortgagor:
(1) other than if the related Mortgage has been recorded in the
name
of MERS or its designee, originals of all interim recorded
assignments of such
mortgage or a copy of such interim assignments certified by the
Depositor as
being a true and complete copy of the original recorded
intervening assignments
of Mortgage (each such assignment, when duly and validly
completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the
assignee thereof, under the Mortgage to which the assignment
relates);
(2) the original or a certified copy of the lender's title
insurance
policy;
(3) the original Mortgage with evidence of recording thereon,
and
the original recorded power of attorney, if the Mortgage was
executed pursuant
to a power of attorney, with evidence of recording thereon or,
if such Mortgage
or power of attorney has been submitted for recording but has
not been returned
from the applicable public recording office, has been lost or is
not otherwise
available, a copy of such Mortgage or power of attorney, as the
case may be,
certified to be a true and complete copy of the original
submitted for
recording; and
(4) for each Mortgage Loan secured by Co-op Shares, the
originals of
the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if
any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and
unbroken line from the mortgagee to the Trustee with evidence of
recording
thereon (or in a form suitable for recordation).
As promptly as practicable subsequent to such transfer and
assignment, the Master Servicer shall (except for any Mortgage
which has been
recorded in the name of MERS or its designee) enforce the
obligations of the
related Servicer pursuant to the related Servicing Agreement to
(I) cause each
Assignment of Mortgage to be in proper form for recording in the
appropriate
public office for real property records within the time period
required in the
applicable Servicing Agreement and (II) at the Depositor's
expense, cause to be
delivered for recording in the appropriate public office for
real property
records the Assignments of the Mortgages to the Trustee, except
that, with
respect to any Assignment of a Mortgage as to which the related
Servicer has not
received the information required to prepare such assignment in
recordable form,
such Servicer's obligation to do so and to deliver the same for
such recording
shall be as soon as practicable after receipt of such
information and in
accordance with the applicable Servicing Agreement and, 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.
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 applicable
Servicer to deliver 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 Master Servicer Custodial Account pursuant to Section
3.09.
Section 2.02 Acceptance by the Trustee of the Mortgage
Loans.
Subject to the provisions of the following paragraph, the
Trustee declares that
it, or the Custodian as its agent, will hold the documents
referred to in
Section 2.01 and the other documents delivered to it
constituting the Mortgage
Files, and that it will hold such other assets as are included
in the Trust
Estate delivered to it, in trust for the exclusive use and
benefit of all
present and future Certificateholders. Upon execution and
delivery of this
document, the Trustee shall deliver or 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, it has
received the original
Mortgage Note relating to each of the Mortgage Loans listed on
the Mortgage Loan
Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, or cause the Custodian to review, the
Mortgage Files
in its possession, and shall deliver 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).
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 Trustee, the Securities
Administrator or the
Custodian discovers a breach by a Servicer or the Seller of any
representation,
warranty or covenant under the Servicing Agreements 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 Seller,
such Servicer
and the Depositor of such failure to meet the requirements of
Section 2.01 or of
such breach and request that the applicable Servicer or the
Seller, as
applicable, deliver such missing documentation or cure such
defect or breach
within 90 days of its discovery or its receipt of notice of any
such failure to
meet the requirements of Section 2.01 or of such breach. If the
Seller or the
applicable Servicer, as applicable, does not deliver such
missing document or
cure such defect or breach in all material respects during such
period, the
Trustee shall enforce the applicable Servicer's or Seller's
obligation, as the
case may be, under the applicable Servicing Agreement or the
Mortgage Loan
Purchase Agreement, as applicable, and cause the applicable
Servicer or Seller,
as applicable, to either (a) solely in the case of the Seller,
substitute for
the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall
be accomplished in the manner and subject to the conditions set
forth below or
(b) purchase such Mortgage Loan from the Trust at the Repurchase
Price for such
Mortgage Loan; provided, however, that in no event shall such a
substitution
occur more than two years from the Closing Date; provided,
further, that such
substitution or repurchase must occur within 90 days of when
such defect was
discovered if such defect will cause the Mortgage Loan not to be
a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the
Code.
In performing any such review, the Trustee or the Custodian
may
conclusively rely on the purported genuineness of any such
document and any
signature thereon. It is understood that the scope of the
Trustee's or the
Custodian's review of the Mortgage Files is limited solely to
confirming that
the documents listed in Section 2.01 have been received and
further confirming
that any and all documents delivered pursuant to Section 2.01
appear on their
face to have been executed and relate to the Mortgage Loans
identified in the
Mortgage Loan Schedule based solely upon the review of items (i)
and (xi) in the
definition of Mortgage Loan Schedule. Neither the Trustee nor
the Custodian
shall have any responsibility for determining whether any
document is valid and
binding, whether the text of any assignment or endorsement is in
proper or
recordable form, whether any document has been recorded in
accordance with the
requirements of any applicable jurisdiction, or whether a
blanket assignment is
permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation
or
warranty of a Servicer or the Seller, the Trustee shall enforce
the rights of
the Trust under the Servicing Agreements 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 a Servicing Agreement, the Trustee shall enforce the right of
the Trust to be
indemnified for such breach of representation or warranty. In
addition, if a
breach of a representation set forth in clauses (k) and (o) of
paragraph 3 or
clauses (f) and (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
Seller for all costs or damages incurred by the Trust as a
result of the
violation of such law (such amount, the "Reimbursement Amount"),
but, in the
case of a breach of a representation set forth in clauses (k)
and (o) of
paragraph 3, only to the extent the applicable Servicer does not
so reimburse
the Trust. It is understood and agreed that, except for any
indemnification
provided in the Servicing Agreements and the payment of any
Reimbursement
Amount, the obligation of a Servicer or the Seller to cure or to
repurchase (or
substitute, in the case of the Seller) any Mortgage Loan as to
which a document
is missing, a material defect in a constituent document exists
or as to which
such a breach has occurred and is continuing shall constitute
the sole remedy
against a Servicer or the Seller in respect of such omission,
defect or breach
available to the Trustee on behalf of the
Certificateholders.
It is understood and agreed that the representations and
warranties
set forth in the Mortgage Loan Purchase Agreement shall survive
delivery of the
Mortgage Files to the Trustee and shall inure to the benefit of
the
Certificateholders notwithstanding any restrictive or qualified
endorsement or
assignment. With respect to the representations and warranties
set forth in the
Mortgage Loan Purchase Agreement that are made to the best of
the Seller's
knowledge or as to which the Seller had no knowledge, if it is
discovered by the
Depositor, the 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 Seller's lack of knowledge with
respect to the
substance of such representation or warranty being inaccurate as
the time the
representation or warranty was made, such inaccuracy shall be
deemed a breach of
the applicable representation or warranty.
The representations and warranties of each Servicer with respect
to
the applicable Mortgage Loans in the related Servicing
Agreement, which have
been assigned to the Trustee hereunder, were made as of the date
specified in
such Servicing Agreement. To the extent that any fact, condition
or event with
respect to a Mortgage Loan constitutes a breach of both (i) a
representation or
warranty of a Servicer under the related Servicing Agreement and
(ii) a
representation or warranty of the Seller under the Mortgage Loan
Purchase
Agreement, the only right or remedy of the Trustee or of any
Certificateholder
shall be the Trustee's right to enforce the obligations of the
applicable
Servicer under any applicable representation or warranty made by
it. The Trustee
acknowledges that the Seller shall have no obligation or
liability with respect
to any breach of a representation or warranty made by it with
respect to the
Mortgage Loans if the fact, condition or event constituting such
breach also
constitutes a breach of a representation or warranty made by the
applicable
Servicer in the applicable Servicing Agreement, without regard
to whether such
Servicer fulfills its contractual obligations in respect of such
representation
or warranty. The Trustee further acknowledges that the Depositor
shall have no
obligation or liability with respect to any breach of any
representation or
warranty with respect to the Mortgage Loans (except as set forth
in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller
shall
deliver to the Trustee, for the benefit of the
Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment of Mortgage (except
for any Mortgage
which has been recorded in the name of MERS or its designee),
and such other
documents and agreements as are otherwise required by Section
2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No
substitution is permitted to be made in any calendar month after
the
Determination Date for such month. Monthly Payments due with
respect to any such
Substitute Mortgage Loan in the month of substitution shall not
be part of the
Trust Estate. For the month of substitution, distributions to
Certificateholders
will include the Monthly Payment due for such month on any
Defective Mortgage
Loan for which the Seller has substituted a Substitute Mortgage
Loan.
The 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
Seller 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 of a Request for Release, the Trustee shall upon receipt
of written
notice from the Master Servicer of such deposit, release, or
shall direct the
Custodian to release, the Mortgage File relating to such
Defective Mortgage Loan
to the Seller and shall execute and deliver at the Seller's
direction such
instruments of transfer or assignment prepared by the Seller, in
each case
without recourse, as shall be necessary to vest title in the
Seller, or its
designee, to the Trustee's interest in any Defective Mortgage
Loan substituted
for pursuant to this Section 2.02.
For any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Defective Mortgage Loans, the
amount (if any) by
which the aggregate principal balance of all such Substitute
Mortgage Loans as
of the date of substitution is less than the aggregate Stated
Principal Balance
of all such Defective Mortgage Loans (after application of the
principal portion
of the Monthly Payments due in the month of substitution) (the
"Substitution
Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed
Advances with respect to such Defective Mortgage Loans shall be
remitted to the
Master Servicer Custodial Account by the Seller on or before the
Servicer
Remittance Date for the Distribution Date in the month
succeeding the calendar
month during which the related Mortgage Loan is required to be
purchased or
replaced hereunder. The Repurchase Price of any repurchase and
the Substitution
Adjustment Amount, if any, shall be deposited in the Master
Servicer Custodial
Account. The Master Servicer shall give the Securities
Administrator and the
Trustee written notice of such deposits.
The Trustee shall retain or shall cause the Custodian to
retain
possession and custody of each Mortgage File in accordance with
and subject to
the terms and conditions set forth herein. The Master Servicer
shall cause to be
promptly delivered to the Trustee, upon the execution or, in the
case of
documents requiring recording, receipt thereof, the originals of
such other
documents or instruments constituting the Mortgage File as come
into the Master
Servicer's possession from time to time.
The Trustee or the Custodian, on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect, review or examine
any such
documents, instruments, certificates or other papers to
determine that they are
genuine, enforceable, or appropriate for the represented purpose
or that they
are other than what they purport to be on their face or (ii) to
determine
whether any Mortgage File should include any of the documents
specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). 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 applicable Custodian on its behalf, as
applicable, shall only be
responsible for confirming that a title search or opinion of
counsel has been
provided for such Mortgage Loan.
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer.
The Master Servicer hereby makes the following representations
and
warranties to the Depositor, the Securities Administrator and
the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association
duly
chartered and validly existing in good standing under the laws
of the
United States of America and has all licenses necessary to carry
on its
business as now being conducted and is licensed, qualified and
in good
standing in each of the states where a Mortgaged Property is
located if
the laws of such state require licensing or qualification in
order to
conduct business of the type conducted by the Master Servicer.
The Master
Servicer has power and authority to execute and deliver this
Agreement and
to perform in accordance herewith; the execution, delivery and
performance
of this Agreement (including all instruments of transfer to be
delivered
pursuant to this Agreement) by the Master Servicer and the
consummation of
the transactions contemplated hereby have been duly and
validly
authorized. This Agreement, assuming due authorization,
execution and
delivery by the other parties hereto, evidences the valid,
binding and
enforceable obligation of the Master Servicer, subject to
applicable law
except as enforceability may be limited by (A) bankruptcy,
insolvency,
liquidation, receivership, moratorium, reorganization or other
similar
laws affecting the enforcement of the rights of creditors and
(B) general
principles of equity, whether enforcement is sought in a
proceeding in
equity or at law. All requisite corporate action has been taken
by the
Master Servicer to make this Agreement valid and binding upon
the Master
Servicer in accordance with its terms.
(ii) No consent, approval, authorization or order is required
for
the transactions contemplated by this Agreement from any
court,
governmental agency or body, or federal or state regulatory
authority
having jurisdiction over the Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or will,
prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by
this
Agreement are in the ordinary course of business of the Master
Servicer
and will not result in the breach of any term or provision of
the charter
or by-laws of the Master Servicer or result in the breach of any
term or
provision of, or conflict with or constitute a default under or
result in
the acceleration of any obligation under, any agreement,
indenture or loan
or credit agreement or other instrument to which the Master
Servicer or
its property is subject, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Master
Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the best knowledge of the Master Servicer, threatened
against the
Master Servicer which, either individually or in the aggregate,
would
result in any material adverse change in the business,
operations,
financial condition, properties or assets of the Master
Servicer, or in
any material impairment of the right or ability of the Master
Servicer to
carry on its business substantially as now conducted or which
would draw
into question the validity of this Agreement or the Mortgage
Loans or of
any action taken or to be taken in connection with the
obligations of the
Master Servicer contemplated herein, or which would materially
impair the
ability of the Master Servicer to perform under the terms of
this
Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the respective Mortgage Files to
the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as
to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee
with
respect to the Mortgage Loans or each Mortgage Loan, as the case
may be, as of
the date hereof or such other date set forth herein that as of
the Closing Date:
(i) Immediately prior to the transfer and assignment
contemplated
herein, the Depositor was the sole owner and holder of the
Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor
and the
Depositor had good and marketable title thereto, and the
Depositor had
full right to transfer and sell the Mortgage Loans to the
Trustee free and
clear of any encumbrance, participation interest, lien, equity,
pledge,
claim or security interest and had full right and authority
subject to no
interest or participation in, or agreement with any other party
to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred
all
right, title and interest in the Mortgage Loans to the Trustee
on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred
the
Mortgage Loans to the Trustee on behalf of the Trust with any
intent to
hinder, delay or defraud 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.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Senior Certificates (other than
the Class 1-A-R
and Class 1-A-LR Certificates) and the Classes of Class B
Certificates as
"regular interests" and the Class 1-A-R Certificate as the
single class of
"residual interest" in the Upper-Tier REMIC for the purposes of
Code Sections
860G(a)(1) and 860G(a)(2), respectively. The Depositor hereby
further designates
the Uncertificated Lower-Tier Interests as classes of "regular
interests" and
the Class 1-A-LR Certificate as the single class of "residual
interest" in the
Lower-Tier REMIC for the purposes of Code Sections 860G(a)(1)
and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each of the Upper-Tier REMIC
and Lower-Tier
REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for
purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest
possible maturity date" of the regular interests in the
Upper-Tier REMIC and
Lower-Tier REMIC is December 20, 2034.
Section 2.08 Execution and Delivery of Certificates. The
Securities
Administrator (i) acknowledges the issuance of and hereby
declares that it holds
the Uncertificated Lower-Tier Interests on behalf of the
Upper-Tier REMIC and
the Certificateholders and (ii) has executed and delivered to or
upon the order
of the Depositor, in exchange for the Mortgage Loans and
Uncertificated
Lower-Tier Interests, together with all other assets included in
the definition
of "Trust Estate," receipt of which is hereby acknowledged, the
Certificates in
authorized denominations which, together with the Uncertificated
Lower-Tier
Interests, evidence ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and
on
behalf of the Certificateholders, the Master Servicer shall
supervise, monitor
and oversee the obligations of the Servicers to service and
administer their
respective Mortgage Loans in accordance with the terms of the
applicable
Servicing Agreement and shall have full power and authority to
do any and all
things which it may deem necessary or desirable in connection
with such master
servicing and administration. In performing its obligations
hereunder, the
Master Servicer shall act in a manner consistent with this
Agreement, subject to
the prior sentence, and with customary and usual standards of
practice of
prudent mortgage loan master servicers. Furthermore, the Master
Servicer shall
oversee and consult with each Servicer as necessary from
time-to-time to carry
out the Master Servicer's obligations hereunder, shall receive,
review and
evaluate all reports, information and other data provided to the
Master Servicer
by each Servicer and shall cause each Servicer to perform and
observe the
covenants, obligations and conditions to be performed or
observed by such
Servicer under the applicable Servicing Agreement. The Master
Servicer shall
independently and separately monitor each Servicer's servicing
activities with
respect to each related Mortgage Loan, reconcile the results of
such monitoring
with such information provided in the previous sentence on a
monthly basis and
coordinate corrective adjustments to the Servicers' and 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 Servicers to the
Master Servicer
Custodial Account pursuant to the applicable Servicing
Agreements.
The relationship of the Master Servicer (and of any successor to
the
Master Servicer as master servicer under this Agreement) to the
Trustee and the
Securities Administrator under this Agreement is intended by the
parties to be
that of an independent contractor and not that of a joint
venturer, partner or
agent.
Section 3.02 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to
the
Trustee, the Securities Administrator and the Depositor the
compliance by each
Servicer with its duties under the related Servicing Agreement.
In the review of
each Servicer's activities, the Master Servicer may rely upon an
officer's
certificate of the Servicer with regard to such Servicer's
compliance with the
terms of its Servicing Agreement. In the event that the Master
Servicer, in its
judgment, determines that a Servicer should be terminated in
accordance with its
Servicing Agreement, or that a notice should be sent pursuant to
such Servicing
Agreement with respect to the occurrence of an event that,
unless cured, would
constitute grounds for such termination, the Master Servicer
shall notify the
Depositor, the Securities Administrator and the Trustee thereof
and the Master
Servicer shall issue such notice or take such other action as it
deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and
the
Certificateholders, shall enforce the obligations of each
Servicer under the
related Servicing Agreement, and shall, in the event that a
Servicer fails to
perform its obligations in accordance with the related Servicing
Agreement,
subject to the preceding paragraph, terminate the rights and
obligations of such
Servicer thereunder and act as successor Servicer of the related
Mortgage Loans
under the applicable Servicing Agreement (except, in the case of
the termination
of Wells Fargo Bank as Servicer under the Wells Fargo Bank
Servicing Agreement,
the Trustee, if it so elects, shall act as successor Servicer,
or shall appoint
a successor Servicer, of the related Mortgage Loans under the
Wells Fargo Bank
Servicing Agreement) or cause the Trustee to enter in to a new
Servicing
Agreement with a successor Servicer selected by the Master
Servicer (except, in
the case of the Wells Fargo Bank Servicing Agreement, the
Trustee shall select
the successor Servicer); provided, however, it is understood and
acknowledged by
the parties hereto that there will be a period of transition
(not to exceed 90
days) before the actual servicing functions can be fully
transferred to such
successor Servicer. Such enforcement, including, without
limitation, the legal
prosecution of claims, termination of Servicing Agreements and
the pursuit of
other appropriate remedies, shall be in such form and carried
out to such an
extent and at such time as the Master Servicer, in its good
faith business
judgment, would require were it the owner of the related
Mortgage Loans. The
Master Servicer 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 a
Servicer,
appointment of a successor Servicer or the transfer and
assumption of servicing
by the Master Servicer or the Trustee, as applicable, with
respect to any
Servicing Agreement (including, without limitation, (i) all
legal costs and
expenses and all due diligence costs and expenses associated
with an evaluation
of the potential termination of the Servicer as a result of an
event of default
by such Servicer and (ii) all costs and expenses associated with
the complete
transfer of servicing, including all servicing files and all
servicing data and
the completion, correction or manipulation of such servicing
data as may be
required by the successor Servicer to correct any errors or
insufficiencies in
the servicing data or otherwise to enable the successor Servicer
to service the
Mortgage Loans in accordance with the related Servicing
Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master
Servicer or the
Trustee, as applicable, shall be entitled to reimbursement of
such costs and
expenses from the Master Servicer Custodial Account.
(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 each Servicer to comply
with
the remittance requirements and other obligations set forth in
the related
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.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
The
Master Servicer shall maintain, at its own expense, a blanket
fidelity bond and
an errors and omissions insurance policy, with broad coverage on
all officers,
employees or other persons involved in the performance of its
obligations as
Master Servicer hereunder. These policies must insure the Master
Servicer
against losses resulting from dishonest or fraudulent acts
committed by the
Master Servicer's personnel, any employees of outside firms that
provide data
processing services for the Master Servicer, and temporary
contract employees or
student interns. No provision of this Section 3.03 requiring
such fidelity bond
and errors and omissions insurance shall diminish or relieve the
Master Servicer
from its duties and obligations as set forth in this Agreement.
The minimum
coverage under any such bond and insurance policy shall be at
least equal to the
corresponding amounts required by FNMA in the FNMA Servicing
Guide or by FHLMC
in the FHLMC Sellers' & Servicers' Guide, as amended or
restated from time to
time, or in an amount as may be permitted to the Master Servicer
by express
waiver of FNMA or FHLMC. 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 cause each Servicer to
provide
in accordance with the related Servicing Agreement to the OCC,
the OTS, the FDIC
and to comparable regulatory authorities supervising Holders of
Certificates and
the examiners and supervisory agents of the OCC, the OTS, the
FDIC and such
other authorities, access to the documentation required by
applicable
regulations of the OCC, the OTS, the FDIC and such other
authorities with
respect to the Mortgage Loans. Such access shall be afforded
without charge, but
only upon reasonable and prior written request and during normal
business hours
at the offices designated by the Master Servicer and the related
Servicer. In
fulfilling such request for access, the Master Servicer shall
not be responsible
to determine the sufficiency of any information provided by such
Servicer.
Nothing in this Section 3.04 shall limit the obligation of the
Master Servicer
and the related Servicer to observe any applicable law and the
failure of the
Master Servicer or the related Servicer to provide access as
provided in this
Section 3.04 as a result of such obligation shall not constitute
a breach of
this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance
Policy;
Claims.
(a) The Master Servicer shall not take, or permit any Servicer
(to
the extent such action is prohibited under the applicable
Servicing Agreement)
to take, any action that would result in noncoverage under any
applicable
Primary Mortgage Insurance Policy of any loss which, but for the
actions of such
Master Servicer or Servicer, would have been covered thereunder.
The Master
Servicer shall use its best reasonable efforts to cause each
Servicer (to the
extent required under the related Servicing Agreement) to keep
in force and
effect (to the extent that the Mortgage Loan requires the
Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each
Mortgage Loan in
accordance with the provisions of this Agreement and the related
Servicing
Agreement, as applicable. The Master Servicer shall not, and
shall not permit
any Servicer (to the extent required under the related Servicing
Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in
effect at the date of the initial issuance of the Mortgage Note
and is required
to be kept in force hereunder except in accordance with the
provisions of this
Agreement and the related Servicing Agreement, as
applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer
(to the extent required under the related Servicing Agreement)
to present, on
behalf of the Trustee and the Certificateholders, claims to the
insurer under
any Primary Mortgage Insurance Policies and, in this regard, to
take such
reasonable action as shall be necessary to permit recovery under
any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to
Sections 3.08 and 3.09, any amounts collected by the Master
Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be
deposited in the
Master Servicer Custodial Account, subject to withdrawal
pursuant to Section
3.12.
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.
If the Master Servicer shall for any reason no longer be the
Master
Servicer hereunder (including by reason of an Event of Default),
the Trustee
shall within 90 days of such time, assume, if it so elects, or
shall appoint a
successor Master Servicer to assume, all of the rights and
obligations of the
Master Servicer hereunder arising thereafter. Any such
assumption shall be
subject to Sections 7.02 and 8.05.
The predecessor Master Servicer shall, upon request of the
Trustee,
but at the expense of the predecessor Master Servicer, deliver
to the assuming
party all master servicing documents and records and an
accounting of amounts
collected or held by it and otherwise use its best efforts to
effect the orderly
and efficient transfer of such substitute documentation and
records to the
assuming party. The Trustee shall be entitled to be reimbursed
from the Master
Servicer (or the Trust if the Master Servicer is unable to
fulfill its
obligations hereunder) for all Master Servicing Transfer
Costs.
Section 3.08 Servicer Custodial Accounts.
The Master Servicer shall enforce the obligation of each
Servicer to
establish and maintain a Servicer Custodial Account in
accordance with the
applicable Servicing Agreement, with records to be kept with
respect thereto on
a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited
within 48 hours (or as of such other time specified in the
related Servicing
Agreement) of receipt all collections of principal and interest
on any Mortgage
Loan and with respect to any REO Property received by a
Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds,
Recoveries and
Advances made from the Servicer's own funds (less servicing
compensation as
permitted by the applicable Servicing Agreement in the case of
any Servicer) and
all other amounts to be deposited in the Servicer Custodial
Account. The Master
Servicer is hereby authorized to make withdrawals from and
deposits to the
related Servicer Custodial Account for purposes required or
permitted by this
Agreement.
Section 3.09 Collection of Mortgage Loan Payments; Servicer
Custodial Account, Master Servicer Custodial Account and
Certificate 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 Servicers to collect all payments due under
the terms and
provisions of the Mortgage Loans when the same shall become due
and payable to
the extent such procedures shall be consistent with the
applicable Servicing
Agreement.
(b) The Master Servicer shall establish and maintain the
Master
Servicer Custodial Account, which shall be an Eligible Account
and which may be
a sub-account of the Certificate Account for so long as the
Master Servicer and
the Securities Administrator are the same Person. The Master
Servicer shall
promptly upon receipt, deposit in the Master Servicer Custodial
Account and
retain therein any amounts which are required to be deposited in
the Master
Servicer Custodial Account by the Master Servicer.
(c) The Securities Administrator shall establish and maintain
the
Certificate Account, which shall be deemed to consist of one
sub-account and
into which the Master Servicer will deposit on or prior to 11:00
AM New York
time, on each Distribution Date (or, if the Securities
Administrator is no
longer the same Person as, or an Affiliate of, the Master
Servicer, the Business
Day preceding each Distribution Date), all amounts on deposit in
the Master
Servicer Custodial Account for distribution to
Certificateholders. The
Certificate Account shall be an Eligible Account.
(d) On a daily basis within one Business Day of receipt, except
as
otherwise specifically provided herein, the Master Servicer
shall deposit or
cause to be deposited into the Master Servicer Custodial Account
the following
payments and collections remitted to the Master Servicer by each
Servicer from
its respective Servicer Custodial Account pursuant to the
related Servicing
Agreement or otherwise received by the Master Servicer in
respect of the
Mortgage Loans subsequent to the Cut-Off Date (other than in
respect of
principal and interest due on the Mortgage Loans on or before
the Cut-Off Date)
and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal of the Mortgage
Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net
of the related Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds,
other
than Insurance Proceeds to be (1) applied to the restoration or
repair of
the Mortgaged Property, (2) released to the Mortgagor in
accordance with
Customary Servicing Procedures or (3) required to be deposited
to an
Escrow Account pursuant to Section 3.10 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 applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant
to
the related Servicing Agreement (or, if applicable, by the
Master Servicer
or Trustee pursuant to Section 3.22) and any Compensating
Interest paid by
the applicable Servicer pursuant to the related Servicing
Agreement;
(vii) all Repurchase Prices, all Substitution Adjustment Amounts
and
all Reimbursement Amounts to the extent received by the
Servicer;
(viii) any Recoveries ; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to
be
deposited, it may at any time withdraw such amount from the
Master Servicer
Custodial Account, any provision herein to the contrary
notwithstanding. All
funds required to be deposited in the Master Servicer Custodial
Account shall be
held by the Master Servicer in trust for the Certificateholders
until disbursed
in accordance with this Agreement or withdrawn in accordance
with Section 3.12.
(e) Each institution at which the Master Servicer Custodial
Account
is maintained shall invest the funds therein as directed in
writing by the
Master Servicer in Permitted Investments, which shall mature not
later than the
Business Day next preceding the Distribution Date (except that
if such Permitted
Investment is an obligation of the institution that maintains
such account, then
such Permitted Investment shall mature not later than such
Distribution Date)
and, in each case, shall not be sold or disposed of prior to its
maturity. All
such Permitted Investments shall be made in the name of the
Trustee, for the
benefit of the Certificateholders. All Master Servicer Custodial
Account
Reinvestment Income shall be for the benefit of the Master
Servicer as part of
its master servicing compensation and shall be remitted to the
Master Servicer
monthly as provided herein. The amount of any losses realized in
the Master
Servicer Custodial Account incurred in any such account in
respect of any such
investments shall promptly be deposited by the Master Servicer
from its own
funds in the Master Servicer Custodial Account. Each institution
at which the
Certificate Account is maintained shall invest the funds therein
if directed in
writing by the Securities Administrator in Permitted Investments
that are
obligations of the institution that maintains the Certificate
Account, which
shall mature on the Distribution Date and shall not be sold or
disposed of prior
to its maturity. All such Permitted Investments shall be made in
the name of the
Trustee, for the benefit of the Certificateholders. All income
and gains net of
any losses realized since the preceding Distribution Date from
Permitted
Investments of funds in the Certificate Account shall be for the
benefit of the
Securities Administrator as additional compensation and the
amount of any losses
realized in the Certificate Account in respect of any such
Permitted Investments
shall promptly be deposited by the Securities Administrator from
its own funds
in the Certificate Account.
(f) The Master Servicer shall give notice to the Depositor,
the
Trustee, the Securities Administrator and the Rating Agencies of
any proposed
change of location of the Master Servicer Custodial Account not
later than 30
days after and not more that 45 days prior to any change
thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee,
the Master
Servicer and the Rating Agencies of any proposed change of the
location of the
Certificate Account maintained by the Securities Administrator
not later than 30
days after and not more than 45 days prior to any change
thereof. The creation
of the Master Servicer Custodial Account and the Certificate
Account shall be
evidenced by a certification substantially in the form of
Exhibit F hereto.
(g) The Securities Administrator shall designate the
Upper-Tier
Certificate Sub-Account as a sub-account of the Certificate
Account. On each
Distribution Date (other than the Final Distribution Date, if
such Final
Distribution Date is in connection with a purchase of the assets
of the Trust
Estate by the Master Servicer), the Securities Administrator
shall, from funds
available on deposit in the Certificate Account, be deemed to
deposit into the
Upper-Tier Certificate Sub-Account, the Lower-Tier Distribution
Amount.
Section 3.10 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.
To the extent required by the related Servicing Agreement and by
the
related Mortgage Note and not violative of current law, the
Master Servicer
shall require each Servicer to establish and maintain one or
more escrow
accounts (for each Servicer, collectively, the "Escrow Account")
and deposit and
retain therein all collections from the Mortgagors (or advances
by such
Servicer) for the payment of taxes, assessments, hazard
insurance premiums or
comparable items for the account of the Mortgagors. Nothing
herein shall require
the Master Servicer to compel a Servicer to establish an Escrow
Account in
violation of applicable law.
Section 3.11 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the
obligation of
the Servicers to afford the Securities Administrator and the
Trustee reasonable
access to all records and documentation regarding the Mortgage
Loans and all
accounts, insurance information and other matters relating to
this Agreement,
such access being afforded without charge, but only upon
reasonable request and
during normal business hours at the office designated by the
Master Servicer or
the applicable Servicer.
Section 3.12 Permitted Withdrawals from the Certificate Account
and
the Master Servicer Custodial Account.
(a) The Securities Administrator shall withdraw funds from
the
Certificate Account for distributions to Certificateholders in
the manner
specified in this Agreement. In addition, the Master Servicer
may from time to
time make withdrawals from the Master Servicer Custodial Account
for the
following purposes:
(i) to pay to the Servicers (to the extent not previously
retained
by them), the Servicing Fee to which they are entitled pursuant
to the
Servicing Agreements, to pay to the Securities Administrator
the
Securities Administrator Fee and to pay to itself any Master
Servicer
Custodial Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee
any
amounts due to the Securities Administrator and the Trustee
under this
Agreement (including, but not limited to, all amounts provided
for under
Section 9.11, other than the amounts provided for in the first
sentence of
Section 9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or
the
Trustee) for unreimbursed Advances made pursuant to the related
Servicing
Agreement (or in the case of the Master Servicer or Trustee,
pursuant to
Section 3.22), such right of reimbursement pursuant to this
clause (iii)
being limited to amounts received on the Mortgage Loans serviced
by such
Servicer (or, if applicable, the Master Servicer or the Trustee)
in
respect of which any such Advance was made;
(iv) to reimburse the Servicers for any Nonrecoverable
Advance
previously made, such right of reimbursement pursuant to this
clause (iv)
being limited to amounts received on the Mortgage Loans serviced
by such
Servicer (of, if applicable, the Master Servicer or the
Trustee);
(v) to reimburse the Servicers for Insured Expenses from the
related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or
REO Property that has been purchased pursuant to Section 2.02,
Section
2.04 or Section 3.16(f), all amounts received thereon after the
date of
such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred
by
any of them and reimbursable pursuant to this Agreement,
including but not
limited to, Section 3.02 and Section 7.03;
(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.
(b) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be on deposit in the Upper-Tier
Certificate Sub-Account
shall be used to make payments on the Regular Certificates and
the Class 1-A-R
Certificate as provided in Sections 5.01 and 5.02. The
Certificate Account shall
be cleared and terminated upon termination of this Agreement
pursuant to Section
10.01.
Section 3.13 Maintenance of Hazard Insurance and Other
Insurance.
For each Mortgage Loan, the Master Servicer shall enforce
any
obligation of the Servicers under the related Servicing
Agreements to maintain
or cause to be maintained fire, flood and hazard insurance with
extended
coverage customary in the area where the Mortgaged Property is
located in
accordance with the related Servicing Agreements. It is
understood and agreed
that such insurance provided for in this Section 3.13 shall be
with insurers
meeting the eligibility requirements set forth in the applicable
Servicing
Agreement and that no earthquake or other additional insurance
is to be required
of any Mortgagor or to be maintained on property acquired in
respect of a
defaulted loan, other than pursuant to such applicable laws and
regulations as
shall at any time be in force and as shall require such
additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by
the
Master Servicer, or by any Servicer, under any insurance
policies (other than
amounts to be applied to the restoration or repair of the
property subject to
the related Mortgage or released to the Mortgagor in accordance
with the
applicable Servicing Agreement) shall be deposited into the
Master Servicer
Custodial Account, subject to withdrawal pursuant to Section
3.12. Any cost
incurred by the Master Servicer or any Servicer in maintaining
any such
insurance if the Mortgagor defaults in its obligation to do so
shall be added to
the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so
permit; provided, however, that the addition of any such cost
shall not be taken
into account for purposes of calculating the distributions to be
made to
Certificateholders and shall be recoverable by the Master
Servicer or such
Servicer pursuant to Sections 3.08 and 3.09.
Section 3.14 Presentment of Claims and Collection of
Proceeds.
The Master Servicer shall (to the extent provided in the
applicable
Servicing Agreement) cause the related Servicer to, prepare and
present on
behalf of the 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 a Servicer and remitted to the Master
Servicer) in
respect of such policies, bonds or contracts shall be promptly
deposited in the
Master Servicer Custodial Account upon receipt, except that any
amounts realized
that are to be applied to the repair or restoration of the
related Mortgaged
Property as a condition precedent to the presentation of claims
on the related
Mortgage Loan to the insurer under any applicable Insurance
Policy need not be
so deposited (or remitted).
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the applicable Servicing Agreement and
to
the extent Mortgage Loans contain enforceable due-on-sale
clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in
accordance with
the applicable Servicing Agreement. If applicable law prohibits
the enforcement
of a due-on-sale clause or such clause is otherwise not enforced
in accordance
with the applicable Servicing Agreement, and, as a consequence,
a Mortgage Loan
is assumed, the original Mortgagor may be released from
liability in accordance
with the applicable Servicing Agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Master Servicer shall cause each Servicer (to the
extent
required under the related Servicing Agreement) to foreclose
upon or otherwise
comparably convert the ownership of Mortgaged Properties
securing such of the
Mortgage Loans as come into and continue in default and as to
which no
satisfactory arrangements can be made for collection of
delinquent payments, all
in accordance with the applicable Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate
of
sale shall be taken in the name of the Trust for the benefit of
the
Certificateholders, or its nominee, on behalf of the
Certificateholders. The
Master Servicer shall enforce the obligation of the Servicers,
to the extent
provided in the applicable Servicing Agreement, to (i) cause
name of the Trust
to be placed on the title to such REO Property and (ii) ensure
that the title to
such REO Property references this Agreement. The Master Servicer
shall, to the
extent provided in the applicable Servicing Agreement, cause the
applicable
Servicer to sell any REO Property as expeditiously as possible
and in accordance
with the provisions of this Agreement and the related Servicing
Agreement, as
applicable. Pursuant to its efforts to sell such REO Property,
the Master
Servicer shall cause the applicable Servicer to protect and
conserve such REO
Property in the manner and to the extent required by the
applicable Servicing
Agreement, subject to the REMIC Provisions.
(c) The Master Servicer shall, to the extent required by the
related
Servicing Agreement, cause the applicable Servicer to deposit
all funds
collected and received in connection with the operation of any
REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any
REO
Property, shall be entitled to reimbursement for any related
unreimbursed
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 applicable Servicer as
provided above shall
be deposited in the related Servicer Custodial Account on or
prior to the
Determination Date in the month following receipt thereof and be
remitted by
wire transfer in immediately available funds to the Master
Servicer for deposit
into the Master Servicer Custodial Account.
In the event that the Trust Estate acquires any Mortgaged
Property
as aforesaid or otherwise in connection with a default or
imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation
of the related
Servicer to dispose of such Mortgaged Property within the time
period specified
in the applicable Servicing Agreement 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. Notwithstanding any other provision of
this Agreement,
no Mortgaged Property acquired by the Trust shall 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 or (ii)
subject either
REMIC created hereunder to the imposition of any federal, state
or local income
taxes on the income earned from such Mortgaged Property under
Section 860G(c) of
the Code or otherwise, unless the Master Servicer or related
Servicer, as
applicable, has agreed to indemnify and hold harmless the Trust
with respect to
the imposition of any such taxes.
(f) On the 2nd Business Day prior to the related Distribution
Date,
the Master Servicer shall notify the Depositor of any Mortgage
Loan which is 180
days or more delinquent. The Depositor shall be entitled, at its
option, to
repurchase any such delinquent Mortgage Loan from the Trust
Estate if in the
Depositor's judgment, the default is not likely to be cured by
the Mortgagor.
The purchase price for any such Mortgage Loan shall be 100% of
the unpaid
principal balance of such Mortgage Loan plus accrued interest
thereon at the
Mortgage Interest Rate through the last day of the month in
which such
repurchase occurs. The Depositor shall notify the related
Servicer and the
Master Servicer of its intent to repurchase such Mortgage Loan.
Upon the receipt
of such purchase price, the Master Servicer shall provide to the
Trustee the
notification required by Section 3.17 and the Trustee or the
Custodian shall
promptly release to the Depositor the Mortgage File relating to
the Mortgage
Loan being repurchased.
Section 3.17 Trustee to Cooperate; Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the
Master Servicer or the related Servicer of a notification that
payment in full
will be escrowed in a manner customary for such purposes, the
Master Servicer or
the related Servicer will immediately notify the Trustee (or, at
the direction
of the Trustee, 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, the Master Servicer and the related Servicer).
Upon receipt of
such request, the Trustee or the Custodian, as applicable, shall
within seven
Business Days release the related Mortgage File to the Master
Servicer or the
related Servicer. The Trustee shall at the Master Servicer's or
the related
Servicer's direction execute and deliver to the Master Servicer
or the related
Servicer the request for reconveyance, deed of reconveyance or
release or
satisfaction of mortgage or such instrument releasing the lien
of the Mortgage,
in each case provided by the Master Servicer or the related
Servicer, together
with the Mortgage Note with written evidence of cancellation
thereon. If the
Mortgage has been recorded in the name of MERS or its designee,
the Master
Servicer shall enforce the applicable Servicer's obligation
under the related
Servicing Agreement 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.
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 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 related
Servicer. Subject to the further limitations set forth below,
the Master
Servicer or the applicable Servicer shall cause the Mortgage
Files so released
to be returned to the Trustee or 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 applicable 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 any related Servicer at any time seeks
to
initiate a foreclosure proceeding in respect of any Mortgaged
Property as
authorized by this Agreement or the Servicing Agreement, the
Master Servicer or
any related Servicer shall deliver or cause to be delivered to
the Trustee, for
signature, as appropriate, any court pleadings, requests for
trustee's sale or
other documents necessary to effectuate such foreclosure or any
legal action
brought to obtain judgment against the Mortgagor on the Mortgage
Note or the
Mortgage or to obtain a deficiency judgment or to enforce any
other remedies or
rights provided by the Mortgage Note or the Mortgage or
otherwise available at
law or in equity.
Section 3.18 Documents, Records and Funds in Possession of
the
Master Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the
Master
Servicer shall cause each Servicer to transmit to the Trustee as
required by
this Agreement and the Servicing Agreements all documents and
instruments in
respect of a Mortgage Loan coming into the possession of the
Servicer from time
to time and shall account fully to the Trustee for any funds
received by the
Master Servicer or the related Servicer or which otherwise are
collected by the
Master Servicer or the related Servicer as Liquidation Proceeds,
Recoveries or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage
Files and funds
collected or held by, or under the control of, the Master
Servicer or the
related Servicer in respect of any Mortgage Loans, whether from
the collection
of principal and interest payments or from Liquidation Proceeds,
including but
not limited to, any funds on deposit in the Master Servicer
Custodial Account or
any Servicer Custodial Account, shall be held by the Master
Servicer or the
related Servicer for and on behalf of the Trustee and shall be
and remain the
sole and exclusive property of the Trustee, subject to the
applicable provisions
of this Agreement and the related Servicing Agreement. The
Master Servicer also
agrees that it shall not knowingly create, incur or subject any
Mortgage File or
any funds that are deposited in the Master Servicer Custodial
Account or any
Escrow Account, or any funds that otherwise are or may become
due or payable to
the Trustee for the benefit of the Certificateholders, to any
claim, lien,
security interest, judgment, levy, writ of attachment or other
encumbrance
created by the Master Servicer, or 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 3.19 Master Servicer Compensation.
Master servicing compensation in the form of Master Servicer
Custodial Account Reinvestment Income shall be remitted to the
Master Servicer
pursuant to Section 3.12. The Master Servicer shall be required
to pay all
expenses incurred by it in connection with its master servicing
activities
hereunder and shall not be entitled to reimbursement therefor
except as
specifically provided in this Agreement.
Section 3.20 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Securities
Administrator
(and the Securities Administrator will forward to the Trustee
and each Rating
Agency), no later than March 15 following the end of each
calendar year
commencing with March 2005, an Officer's Certificate, signed by
two officers of
the Master Servicer, stating, as to the signers thereof, that
(a) a review of
the activities of the Master Servicer during the preceding
calendar year and of
the performance of the Master Servicer under this Agreement or
similar
agreements has been made under such officer's supervision, and
(b) to the best
of such officer's knowledge, based on such review, the Master
Servicer has
fulfilled all its obligations under this Agreement throughout
such year, or, if
there has been a default in the fulfillment of any such
obligation, specifying
each such default known to such officer and the nature and
status thereof.
In addition, the Master Servicer shall enforce each
Servicer's
obligation under the related Servicing Agreement to provide a
similar statement
to the Securities Administrator relating to compliance with the
related
Servicing Agreement.
Section 3.21 Annual Independent Public Accountants'
Servicing
Statement; Financial Statements.
The Master Servicer shall enforce each Servicer's obligation
under
the related Servicing Agreement to provide a report to the
Securities
Administrator, as required to be provided each year pursuant to
each Servicing
Agreement, prepared by a firm of independent public accountants
(who may also
render other services to such Servicer or any affiliate thereof)
which is a
member of the American Institute of Certified Public Accountants
to the effect
that such firm has, with respect to such Servicer's overall
servicing
operations, examined such operations in accordance with the
requirements of the
Uniform Single Attestation Program for Mortgage Bankers, and
stating such firm's
conclusions relating thereto.
Section 3.22 Advances.
The Master Servicer shall enforce the obligations of each
Servicer
to make Periodic Advances in accordance with the applicable
Servicing Agreement.
A Servicer shall be entitled to be reimbursed from the
applicable Servicer
Custodial Account for all Advances of its own funds made
pursuant to the related
Servicing Agreement. Based upon information set forth in the
servicer reports,
the Master Servicer shall inform the Securities Administrator of
the amount of
the Periodic Advance to be made by a Servicer on each Servicer
Advance Date no
later than the related Servicer Remittance Date. If a Servicer
fails to make any
required Periodic Advance pursuant to the related Servicing
Agreement, the
Master Servicer shall (i) unless the Master Servicer determines
that such
Periodic Advance would not be recoverable in its good faith
business judgment,
make such Periodic Advance not later than the Business Day
preceding the related
Distribution Date and (ii) to the extent such failure leads to
the termination
of the Servicer and until such time as a successor Servicer is
appointed,
continue to make Periodic Advances required pursuant to the
related Servicing
Agreement for any Distribution Date, within the same time frame
set forth in (i)
above, unless the Master Servicer determines (to the extent
provided in the
related Servicing Agreement) that such Periodic Advance would
not be
recoverable; provided that if the Servicer that fails to make
such Periodic
Advance is Wells Fargo Bank, the Trustee shall have such
obligation to make such
Periodic Advance.
Section 3.23 Reports to the Securities and Exchange
Commission.
(a) The Securities Administrator and the Master Servicer
shall
reasonably cooperate with the Depositor in connection with the
Trust's
satisfying its reporting requirements under the Exchange Act.
Without limiting
the generality of the foregoing, the Securities Administrator
shall prepare on
behalf of the Trust any monthly Current Reports on Form 8-K
(each, a "Monthly
Form 8-K") and Annual Reports on Form 10-K (each, a "Form 10-K")
customary for
similar securities as required by the Exchange Act and the rules
and regulations
of the Securities and Exchange Commission thereunder, and the
Securities
Administrator shall sign and file (via the Securities and
Exchange Commission's
Electronic Data Gathering and Retrieval System) such Forms
(other than any
Annual Report on Form 10-K, which shall be signed by the Master
Servicer) on
behalf of the Trust.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date,
including a copy of
the monthly statement to Certificateholders delivered pursuant
to Section
5.04(b) (each, a "Distribution Date Statement") for such
Distribution Date as an
exhibit thereto. On or prior to March 30th of each year (or such
earlier date as
may be required by the Exchange Act and the rules and
regulations of the
Securities and Exchange Commission), commencing in the calendar
year following
the date of this Agreement, the Securities Administrator shall
file a Form 10-K,
in substance as required by applicable law or applicable
Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include
as exhibits the
Master Servicer's and each Servicer's annual statement of
compliance described
under Section 3.20 and the accountant's report referenced under
Section 3.21, in
each case, to the extent they have been timely delivered to the
Securities
Administrator. If they are not so timely delivered, the
Securities Administrator
shall file an amended Form 10-K including such documents as
exhibits reasonably
promptly after they are delivered to the Securities
Administrator. The
Securities Administrator shall have no liability with respect to
any failure to
properly prepare or file such periodic reports resulting from or
relating to the
Securities Administrator's inability or failure to obtain any
information not
resulting from its own negligence, willful misconduct or bad
faith. The Form
10-K shall also include a certification in the form attached
hereto as Exhibit O
(the "Certification"), which shall be signed by a senior officer
of the Master
Servicer in charge of the servicing functions. The Master
Servicer shall deliver
the Certification to the Securities Administrator three (3)
Business Days prior
to the latest date on which the Form 10-K may be timely filed.
The Securities
Administrator, the Depositor and the Master Servicer shall
reasonably cooperate
to enable the Securities and Exchange Commission requirements
with respect to
the Trust to be met in the event that the Securities and
Exchange Commission
issues additional interpretive guidelines or promulgates rules
or regulations,
or in the event of any other change of law that would require
reporting
arrangements or the allocation of responsibilities with respect
thereto, as
described in this Section 3.23, to be conducted or allocated in
a different
manner.
(c) Prior to the latest date on which the Form 10-K may be
timely
filed each year, the Securities Administrator shall sign and
deliver to the
Master Servicer a certification (in the form attached hereto as
Exhibit P) for
the benefit of the Master Servicer and its officers, directors
and affiliates
(provided, however, that the Securities Administrator shall not
undertake an
analysis of the accountant's report attached as an exhibit to
the Form 10-K). In
addition, the Securities Administrator shall indemnify and hold
harmless the
Master Servicer, each person, if any, who "controls" the Master
Servicer within
the meaning of the 1933 Act, as amended and their respective
officers,
directors, agents and affiliates (collectively, the "Master
Servicer Indemnified
Parties") from and against any losses, damages, penalties,
fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments
and other costs
and expenses arising out of or based upon any inaccuracy in the
certification
provided by the Securities Administrator pursuant to this
Section 3.23(c), any
breach by the Securities Administrator or any of its officers,
directors, agents
or affiliates of its obligations under this Section 3.23(c) or
any material
misstatements or omission contained in the certification
delivered pursuant to
this Section 3.23(c) or the Securities Administrator's
negligence, bad faith or
willful misconduct in connection therewith. If the
indemnification provided for
herein is unavailable or insufficient to hold harmless the
Master Servicer
Indemnified Parties, then the Securities Administrator agrees
that it shall
contribute to the amount paid or payable by such Master Servicer
Indemnified
Parties as a result of the losses, claims, damages or
liabilities of such Master
Servicer Indemnified Parties in such proportion as is
appropriate to reflect the
relative fault of such Master Servicer Indemnified Parties on
the one hand and
the Securities Administrator on the other in connection with a
breach of the
Securities Administrator's obligations under this Section
3.23(c), any material
misstatement or omission contained in the certification
delivered pursuant to
this Section 3.23(c) or the Securities Administrator's
negligence, bad faith or
willful misconduct in connection therewith. The Master Servicer
hereby
acknowledges and agrees that the Depositor and the Securities
Administrator are
relying on the Master Servicer's performance of its obligations
under Sections
3.20 and 3.21 in order to perform their respective obligations
under this
Section 3.23.
(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 each
Servicer to provide the certification required pursuant to each
of the Servicing
Agreements.
(e) Upon any filing with the Securities and Exchange Commission,
the
Securities Administrator shall promptly deliver to the Depositor
a copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of
this
Section shall only apply with respect to periods for which the
Securities
Administrator is obligated to file reports on Form 8-K or 10-K
pursuant to
paragraph (b) of this Section. Upon request of the Depositor,
the Securities
Administrator shall prepare, execute and file with the
Securities and Exchange
Commission a Form 15 Suspension Notification with respect to the
Trust.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the
18th
calendar day of such month (or if such day is not a Business
Day, the following
Business Day, the Master Servicer shall deliver to the
Securities Administrator,
a Master Servicer's Certificate (in substance and format
mutually acceptable to
the Master Servicer and the Securities Administrator) certified
by a Master
Servicing Officer setting forth the information necessary in
order for the
Securities Administrator to perform its obligations under this
Agreement. The
Securities Administrator may conclusively rely upon the
information contained in
a Master Servicer's Certificate for all purposes hereunder and
shall have no
duty to verify or re-compute any of the information contained
therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based
solely
on the information in the Master Servicer's Certificate, the
Securities
Administrator shall distribute out of the Certificate Account
(to the extent
funds are available therein) to each Certificateholder of record
on the related
Record Date (other than as provided in Section 10.01 respecting
the final
distribution) (a) by check mailed to such Certificateholder
entitled to receive
a distribution on such Distribution Date at the address
appearing in the
Certificate Register, or (b) upon written request by the Holder
of a Certificate
(other than a Residual Certificate), by wire transfer or by such
other means of
payment as such Certificateholder and the Securities
Administrator shall agree
upon, such Certificateholder's Percentage Interest in the amount
to which the
related Class of Certificates is entitled in accordance with the
priorities set
forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor,
the
Master Servicer, the Securities Administrator or the Trustee
shall in any way be
responsible or liable to Holders of any Class of Certificates in
respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates
shall
be applied first to the distribution of interest thereon and
then to principal
thereon.
Section 5.02 Priorities of Distributions.
(a) On each Distribution Date, based solely on the
information
contained in the Master Servicer's Certificate, the Securities
Administrator
shall withdraw from the Certificate Account (to the extent funds
are available
therein) (1) to the extent not previously paid, the amounts
payable to the
Securities Administrator and the Trustee pursuant to Sections
3.12(a)(ii) and
shall pay such funds to itself and the Trustee, as applicable,
and (2) the Pool
Distribution Amount (after the payment of the Servicing Fees and
Securities
Administrator Fees for such Distribution Date and expenses and
indemnities
reimbursable pursuant to this Agreement, in each case to the
extent not
previously retained by or distributed to a Servicer, the
Securities
Administrator, the Master Servicer or the Trustee), in an amount
as specified in
written notice received by the Securities Administrator from the
Master Servicer
no later than the Business Day following the related
Determination Date, and
shall apply such funds first, to distributions in respect of the
Uncertificated
Lower-Tier Interests as specified in this Section 5.02(a) as a
deemed deposit in
the Upper-Tier Certificate Sub-Account and to the Class 1-A-R
and Class 1-A-LR
Certificates and then to distributions on the Certificates
(other than the Class
1-A-R and Class 1-A-LR Certificates). Distributions shall be
made on the
Certificates in the following order of priority and to the
extent of such funds:
(i) to each Class of Senior Certificates (other than the Class
30-PO
Certificates), an amount allocable to interest equal to the
Interest
Distribution Amount for such Class and any shortfall being
allocated among
such Classes in proportion to the amount of the Interest
Distribution
Amount that would have been distributed in the absence of such
shortfall;
(ii) concurrently to the Senior Certificates (other than the
Class
30-PO Certificates) and the Class 30-PO Certificates, pro rata,
based on
their respective Senior Principal Distribution Amount and PO
Principal
Amount, (A) to the Senior Certificates (other than the Class
30-PO
Certificates) in an aggregate amount up to the Senior
Principal
Distribution Amount, such distribution to be allocated among
such Classes
in accordance with Section 5.02(b) and (B) to the Class 30-PO
Certificates
in an aggregate amount up to the PO Principal Amount;
(iii) to the Class 30-PO Certificates, any Class PO Deferred
Amount
(after giving effect to the distribution to the Class 30-PO
Certificates
of the Class PO Recovery), up to the Subordinate Principal
Distribution
Amount for such Distribution Date from amounts otherwise
distributable
first to the Class B-6, pursuant to clause (iv)(L) below, second
to the
Class B-5 Certificates, pursuant to clause (iv)(J) below, third
to the
Class B-4 Certificates, pursuant to clause (iv)(H) below, fourth
to the
Class B-3 Certificates, pursuant to clause (iv)(F) below, fifth
to the
Class B-2 Certificates, pursuant to clause (iv)(D) below and
finally to
the Class B-1 Certificates, pursuant to clause (iv)(B)
below;
(iv) to each Class of Subordinate Certificates, subject to
paragraph
(d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero; and
(v) to the Holder of the Class 1-A-R Certificate, any
amounts
remaining in the Upper-Tier Certificate Sub-Account and to the
Holder of the
Class 1-A-LR Certificate, any remaining Pool Distribution
Amounts.
No Class of Certificates will be entitled to any distributions
with
respect to the amount payable pursuant to clause (ii) of the
definition of
"Interest Distribution Amount" after its Class Certificate
Balance or Notional
Amount has been reduced to zero.
On any Distribution Date, amounts distributed in respect of
Class PO
Deferred Amounts (including the distribution of the Class PO
Recoveries) will
not reduce the Class Certificate Balance of the Class 30-PO
Certificates.
All distributions in respect of the Interest Distribution Amount
for
a Class will be applied first with respect to the amount payable
pursuant to
clause (i) of the definition of "Interest Distribution Amount,"
and second with
respect to the amount payable pursuant to clause (ii) of such
definition.
On each Distribution Date, the Securities Administrator
shall
distribute any Reimbursement Amount sequentially to the Classes
of Certificates
then outstanding which bore the loss to which such Reimbursement
amount relates
beginning with the most senior of such Classes of Certificates,
up to, with
respect to each Class, the amount of loss borne by such Class.
Any Reimbursement
Amount remaining after the application described in the
preceding sentence shall
be included in the Pool Distribution Amount. On each
Distribution Date, the
Securities Administrator shall distribute any Class PO Recovery
to the Holders
of the Class 30-PO Certificates.
In the event that on any Distribution Date, the Subordinate
Principal Distribution Amount is insufficient to reduce the
Class PO Deferred
Amounts for the Class 30-PO Certificates to zero, the amount
that is available
shall be distributed to such Class.
Each Uncertificated Lower-Tier Interest (other than the
Class
1-A-LIO Interest) shall receive distributions in respect of
principal in an
amount equal to the amount of principal distributed to its
respective
Corresponding Upper-Tier Class or Classes as provided herein. On
each
Distribution Date, each Uncertificated Lower-Tier Interest
(other than the Class
1-A-LPO Interest) shall receive distributions in respect of
interest in an
amount equal to the Interest Distribution Amount in respect of
its Corresponding
Upper-Tier Class or Classes to the extent actually distributed
thereon. With
respect to any Distribution Date, the principal portion of
Realized Losses and
recoveries attributable to previously allocated Realized Losses
allocated
pursuant to this Section 5.02(a) will be allocated to each
Uncertificated
Lower-Tier Interest in an amount equal to the amount allocated
to its respective
Corresponding Upper-Tier Class or Classes as provided above, and
the interest
portion of Realized Losses allocated pursuant to this Section
5.02(a) will be
allocated to each Uncertificated Lower-Tier Interest in the same
relative
proportions as interest is allocated to such Uncertificated
Lower-Tier Interest.
As of any date, the principal balance or notional amount of
each
Uncertificated Lower-Tier Interest equals the aggregate of the
Class Certificate
Balances or Notional Amounts of the respective Corresponding
Upper-Tier Class or
Classes. The initial principal balance or notional amount of
each Uncertificated
Lower-Tier Interest equals the aggregate of the Initial Class
Certificate
Balances or Initial Notional Amounts of the respective
Corresponding Upper-Tier
Class or Classes.
The pass-through rate with respect to the Class 1-A-L1
Interest,
Class 1-A-L3 Interest, Class 1-A-L13 Interest, Class 1-A-L16
Interest, Class
1-A-LUR Interest, Class B-L1 Interest, Class B-L2 Interest,
Class B-L3 Interest,
Class B-L4 Interest, Class B-L5 Interest and Class B-L6 Interest
shall be 5.500%
per annum. The pass-through rate with respect to the Class
1-A-L19 Interest
shall be 5.250% per annum. The pass-through rate with respect to
the Class
1-A-L20 Interest shall be 8.000% per annum. The pass-through
rate with respect
to the Class 1-A-LIO Interest shall be a per annum rate equal to
the
Pass-Through Rate of the Class 30-IO Certificates. The Class
1-A-LPO Interest is
a principal-only interest and is not entitled to distributions
of interest.
Any Non-Supported Interest Shortfalls will be allocated to
each
Uncertificated Lower-Tier Interest in the same relative
proportions as interest
is allocated to such Uncertificated Lower-Tier Interest. Amounts
distributed to
the Uncertificated Lower-Tier Interests in respect of principal
and interest
with respect to any Distribution Date are referred to herein
collectively as the
"Lower-Tier Distribution Amount."
(b) On each Distribution Date prior to the Senior Credit
Support
Depletion Date, the amount distributable to the Senior
Certificates
pursuant to Section 5.02(a)(ii)(A) for such Distribution Date,
will be
distributed, sequentially, as follows:
first, concurrently to the Class 1-A-R and Class 1-A-LR
Certificates, pro rata, until their Class Certificate Balances
have been reduced
to zero;
second, to the Class 1-A-1 Certificates, up to the Priority
Amount
for such Distribution Date, until their Class Certificate
Balance has been
reduced to zero;
third, concurrently, as follows:
(A) 29.9761334503%, sequentially, as follows:
(1) concurrently, to the Class 1-A-19 and Class 1-A-20
Certificates, pro rata, until their Class Certificate
Balances have been reduced to zero; and
(2) concurrently, as follows:
(a) 66.6666666667%, sequentially, to the Class 1-A-9,
Class 1-A-10, Class 1-A-11 and Class 1-A-12 Certificates,
in that order, until their Class Certificate Balances have
been reduced to zero; and
(b) 33.3333333333%, sequentially, as follows:
(i) concurrently, to the Class 1-A-13 and Class
1-A-14 Certificates, pro rata, until their Class
Certificate Balances have been reduced to zero; and
(ii) to the Class 1-A-15 Certificates, until their
Class Certificate Balance has been reduced to zero.
(B) 70.0238665497%, sequentially, as follows:
(1) to the Class 1-A-3 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(2) concurrently, as follows:
(a) 60.4930467762%, concurrently, to the Class
1-A-16 and Class 1-A-18 Certificates, pro rata,
until their Class Certificate Balances have been
reduced to zero; and
(b) 39.5069532238%, sequentially, to the Class
1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7 and
Class 1-A-8 Certificates, in that order, until
their Class Certificate Balances have been reduced
to zero.
fourth, to the Class 1-A-1 Certificates, until their Class
Certificate Balance has been reduced to zero.
On each Distribution Date on or after the Senior Credit
Support
Depletion Date, notwithstanding the allocation and priority set
forth above, the
portion of the Pool Distribution Amount available to be
distributed as principal
of the Senior Certificates shall be distributed concurrently, as
principal, on
such Classes, pro rata, on the basis of their respective Class
Certificate
Balances, until the Class Certificate Balances thereof are
reduced to zero.
The Class 1-A-2, Class 1-A-17, Class 1-A-21 and Class 30-IO
Certificates are Interest-Only Certificates and are not entitled
to
distributions in respect of principal.
(c) On each Distribution Date, Accrued Certificate Interest for
each
Class of Certificates for such Distribution Date (other than the
Class 30-PO
Certificates) shall be reduced by such Class' pro rata share,
based on such
Class' Interest Distribution Amount for such Distribution Date,
without taking
into account the allocation made by this Section 5.02(c), of (A)
Non-Supported
Interest Shortfalls, (B) on and after the Senior Credit Support
Depletion Date,
any other Realized Loss on the Mortgage Loans allocable to
interest and (C)
Relief Act Reductions incurred on the Mortgage Loans during the
calendar month
preceding the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in
Section
5.02(a)(iv), if with respect to any Class of Subordinate
Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate
Balances
immediately prior to such Distribution Date of all Classes of
Subordinate
Certificates which have a higher numerical Class designation
than such Class,
divided by (ii) the Pool Stated Principal Balance (Non-PO
Portion) immediately
prior to such Distribution Date (the "Fractional Interest") is
less than the
Original Fractional Interest for such Class, no distribution of
principal will
be made to any Classes of Subordinate Certificates junior to
such Class (the
"Restricted Classes") and the Class Certificate Balances of the
Restricted
Classes will not be used in determining the Pro Rata Share for
the Subordinate
Certificates that are not Restricted Classes. If the aggregate
Class Certificate
Balances of the Subordinate Certificates that are not Restricted
Classes is
reduced to zero, notwithstanding the previous sentence, any
funds remaining will
be distributed sequentially to the Restricted Classes in order
of their
respective numerical Class designations (beginning with the
Class of Restricted
Certificates then outstanding with the lowest numerical Class
designation).
Section 5.03 Allocation of Losses.
(a) On or prior to each Determination Date, the Master
Servicer
shall inform the Securities Administrator in writing with
respect to each
Mortgage Loan: (1) whether any Realized Loss is a Deficient
Valuation or a Debt
Service Reduction, (2) of the amount of such loss or Deficient
Valuation, or of
the terms of such Debt Service Reduction and (3) of the total
amount of Realized
Losses. Based on such information, the Securities Administrator
shall determine
the total amount of Realized Losses with respect to the related
Distribution
Date. Realized Losses shall be allocated to the Certificates by
a reduction in
the Class Certificate Balance of the designated Classes pursuant
to the
operation of Section 5.03(b).
(b) The Class Certificate Balance of the Class 30-PO
Certificates
shall be reduced on each Distribution Date by the amount, if
any, by which the
Class 30-PO Certificates (after giving effect to the amounts to
be distributed
as a distribution of principal on such Distribution Date)
exceeds the Adjusted
Pool Amount (PO Portion) for such Distribution Date. The Class
Certificate
Balance of the Class of Subordinate Certificates then
outstanding with the
highest numerical Class designation shall be reduced or
increased on each
Distribution Date by the amount, if any, necessary such that the
aggregate of
the Class Certificate Balances of all outstanding Classes (after
giving effect
to the amount to be distributed as a distribution of principal
and the
allocation of Class PO Deferred Amounts on such Distribution
Date) equals the
Adjusted Pool Amount (Non-PO Portion) for such Distribution
Date.
After the applicable Senior Credit Support Depletion Date, the
Class
Certificate Balances of the Senior Certificates in the aggregate
shall be
reduced or increased on each Distribution Date by the amount, if
any, necessary
such that the aggregate of the Class Certificate Balances of all
outstanding
Classes of Senior Certificates (after giving effect to the
amount to be
distributed as a distribution of principal on such Distribution
Date) equals the
Adjusted Pool Amount (Non-PO Portion) for such Distribution
Date.
Any such reduction or increase shall be allocated among the
Senior
Certificates based on the Class Certificate Balances immediately
prior to such
Distribution Date.
(c) Any reduction or increase in the Class Certificate Balance
of a
Class of Certificates pursuant to Section 5.03(b) above shall be
allocated among
the Certificates of such Class in proportion to their respective
Percentage
Interests.
(d) The calculation of the amount to be distributed as principal
to
any Class of Subordinate Certificates with respect to a
Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the
allocation of
any Realized Losses for such Distribution Date; provided,
however, the actual
payment of principal to the Classes of Certificates shall be
made subsequent to
the allocation of Realized Losses for such Distribution Date. In
the event that
after the allocation of Realized Losses for a Distribution Date,
the Calculated
Principal Distribution for a Class of Subordinate Certificates
is greater than
the Class Certificate Balance of such Class, the excess shall be
distributed
first, sequentially, to the Classes of Subordinate Certificates
then outstanding
(beginning with the Class of Subordinate Certificates then
outstanding with the
lowest numerical designation) until the respective Class
Certificate Balance of
each such Class is reduced to zero and then to the Senior
Certificates, pro
rata, in accordance with the priorities set forth in Section
5.02.
(e) With respect to any Distribution Date, Realized Losses
allocated
pursuant to this Section 5.03 will be allocated to each
Uncertificated
Lower-Tier Interest as described in Section 5.02(a).
(f) Notwithstanding any other provision of this Section 5.03,
no
Class Certificate Balance of a Class will be increased on any
Distribution Date
such that the Class Certificate Balance of such Class exceeds
its Initial Class
Certificate Balance less all distributions of principal
previously distributed
in respect of such Class on prior Distribution Dates (excluding
in the case of
any Class of Class B Certificates any principal otherwise
payable to such Class
B Certificates but used to pay any Class PO Deferred
Amount).
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon
the
information provided to the Securities Administrator on the
Master Servicer's
Certificates delivered to the Securities Administrator pursuant
to Section 4.01,
the Securities Administrator shall determine the following
information with
respect to such Distribution Date:
(i) the amount allocable to principal, separately identifying
the
aggregate amount of any Principal Prepayments and Liquidation
Proceeds
included therein;
(ii) the amount allocable to interest, any Class Unpaid
Interest
Shortfall included in such distribution and any remaining Class
Unpaid
Interest Shortfall after giving effect to such distribution;
(iii) if the
distribution to the Holders of such Class of Certificates is
less than the
full amount that would be distributable to such Holders if there
were
sufficient funds available therefor, the amount of the shortfall
and the
allocation thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of
Certificates
after giving effect to the distribution of principal on such
Distribution
Date;
(v) the Pool Stated Principal Balance for the following
Distribution
Date;
(vi) the Senior Percentage and the Subordinate Percentage for
the
following Distribution Date;
(vii) the amount of the Servicing Fee paid to or retained by
each
Servicer with respect to such Distribution Date;
(viii) the amount of the Master Servicing Fee paid to the
Master
Servicer with respect to such Distribution Date;
(ix) the Pass-Through Rate for each such Class of Certificates
with
respect to such Distribution Date;
(x) the amount of Periodic Advances included in the distribution
on
such Distribution Date and the aggregate amount of Periodic
Advances
outstanding as of the close of business on such Distribution
Date;
(xi) the number and aggregate principal amounts of Mortgage
Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure or
bankruptcy)
(1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91
or more
days, (B) in foreclosure, as of the close of business on the
last day of
the calendar month preceding such Distribution Date and (c) in
bankruptcy,
as of the close of business on the last day of the calendar
month
preceding such Distribution Date;
(xii) with respect to any Mortgage Loan that became an REO
Property
during the preceding calendar month, the loan number and Stated
Principal
Balance of such Mortgage Loan as of the close of business on
the
Determination Date preceding such Distribution Date and the date
of
acquisition thereof;
(xiii) the total number and principal balance of any REO
Properties
(and market value, if available) as of the close of business on
the
Determination Date preceding such Distribution Date;
(xiv) the Senior Prepayment Percentage and the Subordinate
Prepayment Percentage for the following Distribution Date;
(xv) the aggregate amount of Realized Losses incurred during
the
preceding calendar month and for any Class PO Deferred Amounts
for such
Distribution Date;
(xvi) the Class 1-A-2 Notional Amount, Class 1-A-17 Notional
Amount,
Class 1-A-21 Notional Amount and Class 30-IO Notional Amount for
such
Distribution Date; and
(xvii) the amount of total Recoveries, the Class PO Recovery and
the
Non-PO Recovery and the amount of the Class PO Recovery
allocated to the
Class 30-PO Certificates.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the
Master Servicer's
Certificates, shall make available to each Holder of a
Certificate, each Rating
Agency and the Master Servicer a statement setting forth the
information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i)
and
(ii) of Section 5.04(a), the amounts shall be expressed as a
dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator
shall
prepare and furnish to each Financial Market Service, in
electronic or such
other format and media mutually agreed upon by the Securities
Administrator, the
Financial Market Service and the Depositor, the information
contained in the
statement described in Section 5.04(a) for such Distribution
Date.
The Securities Administrator will make the monthly statement
to
Certificateholders (and, at its option, any additional files
containing the same
information in an alternative format) available each month
to
Certificateholders, and other parties to this Agreement via the
Securities
Administrator's Internet website. The Securities Administrator's
Internet
website shall initially be located at "www.ctslink.com."
Assistance in using the
website can be obtained by calling the Securities
Administrator's customer
service desk at (301) 815-6600. Parties that are unable to use
the website are
entitled to have a paper copy mailed to them via first class
mail by calling the
customer service desk and indicating such. The Securities
Administrator shall
have the right to change the way the monthly statements to
Certificateholders
are distributed in order to make such distribution more
convenient and/or more
accessible to the above parties and the Securities Administrator
shall provide
timely and adequate notification to all above parties regarding
any such
changes.
Within a reasonable period of time after the end of each
calendar
year, the Securities Administrator shall furnish to each Person
who at any time
during the calendar year was the Holder of a Certificate, if
requested in
writing by such Person, a statement containing the information
set forth in
clauses (i) and (ii) of Section 5.04(a), in each case aggregated
for such
calendar year or applicable portion thereof during which such
Person was a
Certificateholder. Such obligation of the Securities
Administrator shall be
deemed to have been satisfied to the extent that substantially
comparable
information shall be provided by the Securities Administrator
pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the Securities
Administrator is required
by this Agreement or the Code, Treasury Regulations or REMIC
Provisions to
deliver to the Holders of Certificates, and the Securities
Administrator shall
prepare and provide to the Certificateholders (by mail,
telephone, or
publication as may be permitted by applicable Treasury
Regulations) such other
reasonable information as the Securities Administrator deems
necessary or
appropriate or is required by the Code, Treasury Regulations,
and the REMIC
Provisions including, but not limited to, (i) information to be
reported to the
Holders of the Residual Certificates for quarterly notices on
Schedule Q (Form
1066) (which information shall be forwarded to the Holders of
the Residual
Certificates by the Securities Administrator), (ii) information
to be provided
to the Holders of Certificates with respect to amounts which
should be included
as interest and original issue discount in such Holders' gross
income and (iii)
information to be provided to all Holders of Certificates
setting forth the
percentage of each REMIC's assets, determined in accordance with
Treasury
Regulations using a convention, not inconsistent with Treasury
Regulations,
selected by the Securities Administrator in its absolute
discretion, that
constitute real estate assets under Section 856 of the Code, and
assets
described in Section 7701(a)(19)(C) of the Code; provided,
however, that in
setting forth the percentage of such assets of each REMIC,
nothing contained in
this Agreement, including without limitation Section 7.03
hereof, shall be
interpreted to require the Securities Administrator periodically
to appraise the
fair market values of the assets of the Trust Estate or to
indemnify the Trust
Estate or any Certificateholders from any adverse federal, state
or local tax
consequences associated with a change subsequently required to
be made in the
Depositor's initial good faith determinations of such fair
market values (if
subsequent determinations are required pursuant to the REMIC
Provisions) made
from time to time.
Section 5.05 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a
calendar year taxable year and shall maintain its books on the
accrual method of
accounting.
(b) The Securities Administrator shall prepare or cause to
be
prepared, the Trustee shall timely sign, and the Securities
Administrator shall
file or cause to be filed with the Internal Revenue Service and
applicable state
or local tax authorities income tax information returns for each
taxable year
with respect to each REMIC containing such information at the
times and in the
manner as may be required by the Code, the Treasury Regulations
or state or
local tax laws, regulations, or rules, and shall furnish or
cause to be
furnished to each REMIC and the Certificateholders the
schedules, statements or
information at such times and in such manner as may be required
thereby. Within
30 days of the Closing Date, the Securities Administrator shall
obtain a
taxpayer identification number on Form SS-4 or as otherwise
permitted by the
Internal Revenue Service, and shall furnish or cause to be
furnished to the
Internal Revenue Service, on Form 8811 or as otherwise
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