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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 October 29, 2004
----------------------------------
Mortgage Pass-Through Certificates
Series 2004-B
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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 Trusteein 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; Master
Servicer Custodial
Account, Servicer Custodial Account, Distribution Account
and
ReserveAccount...........................................
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow
Accounts
....................................................
Section 3.11 Access of Securities Administrator and Trustee to
Certain
Documentation and Information Regarding the Mortgage
Loans...
Section 3.12 Permitted Withdrawals from the Master Servicer
Custodial
Account and the Distribution
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;
FinancialStatements..........................................
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 for the Shifting
Interest Groups..
Section 5.03 Priorities of Distributions for Group
7.......................
Section 5.04 Allocation of Losses for the Shifting Interest
Certificates;
Allocation of Net Negative
Amortization......................
Section 5.05 Allocation of Losses for the Group 7
Certificates.............
Section 5.06 Statements to
Certificateholders..............................
Section 5.07 Tax Returns and Reports to
Certificateholders.................
Section 5.08 Tax Matters
Person............................................
Section 5.09 Rights of the Tax Matters Person in Respect of the
Securities
Administrator................................................
Section 5.10 REMIC Related
Covenants.......................................
Section 5.11 REMIC
Distributions...........................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates..............................................
Section 6.02 Registration of Transfer and Exchange of
Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen
Certificates............
Section 6.04 Persons Deemed
Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE 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
Administrato
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.114
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
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...........................................
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-X-1 Form of Face of Class 1-X-1 Certificate
Exhibit A-1-X-2 Form of Face of Class 1-X-2 Certificate
Exhibit A-2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit A-2-A-2 Form of Face of Class 2-A-2 Certificate
Exhibit A-3-A-1 Form of Face of Class 3-A-1 Certificate
Exhibit A-3-A-2 Form of Face of Class 3-A-2 Certificate
Exhibit A-3-A-R Form of Face of Class 3-A-R Certificate
Exhibit A-3-A-MR Form of Face of Class 3-A-MR Certificate
Exhibit A-3-A-LR Form of Face of Class 3-A-LR Certificate
Exhibit A-3-X-1 Form of Face of Class 3-X-1 Certificate
Exhibit A-3-X-2 Form of Face of Class 3-X-2 Certificate
Exhibit A-4-A-1 Form of Face of Class 4-A-1 Certificate
Exhibit A-4-A-2 Form of Face of Class 4-A-2 Certificate
Exhibit A-4-X-1 Form of Face of Class 4-X-1 Certificate
Exhibit A-4-X-2 Form of Face of Class 4-X-2 Certificate
Exhibit A-5-A-1 Form of Face of Class 5-A-1 Certificate
Exhibit A-6-A-1 Form of Face of Class 6-A-1 Certificate
Exhibit A-6-X-1 Form of Face of Class 6-X-1 Certificate
Exhibit A-7-A-1 Form of Face of Class 7-A-1 Certificate
Exhibit A-7-CE Form of Face of Class 7-CE Certificate
Exhibit A-7-R Form of Face of Class 7-R Certificate
Exhibit A-7-LR Form of Face of Class 7-LR Certificate
Exhibit B-CB-1 Form of Face of Class CB-1 Certificate
Exhibit B-CB-2 Form of Face of Class CB-2 Certificate
Exhibit B-CB-3 Form of Face of Class CB-3 Certificate
Exhibit B-CB-4 Form of Face of Class CB-4 Certificate
Exhibit B-CB-5 Form of Face of Class CB-5 Certificate
Exhibit B-CB-6 Form of Face of Class CB-6 Certificate
Exhibit B-DB-1 Form of Face of Class DB-1 Certificate
Exhibit B-DB-2 Form of Face of Class DB-2 Certificate
Exhibit B-DB-3 Form of Face of Class DB-3 Certificate
Exhibit B-DB-4 Form of Face of Class DB-4 Certificate
Exhibit B-DB-5 Form of Face of Class DB-5 Certificate
Exhibit B-DB-6 Form of Face of Class DB-6 Certificate
Exhibit B-6-B-1 Form of Face of Class 6-B-1 Certificate
Exhibit B-6-B-2 Form of Face of Class 6-B-2 Certificate
Exhibit B-6-B-3 Form of Face of Class 6-B-3 Certificate
Exhibit B-6-B-4 Form of Face of Class 6-B-4 Certificate
Exhibit B-6-B-5 Form of Face of Class 6-B-5 Certificate
Exhibit B-6-B-6 Form of Face of Class 6-B-6 Certificate
Exhibit B-7-M-1 Form of Face of Class 7-M-1 Certificate
Exhibit B-7-M-2 Form of Face of Class 7-M-2 Certificate
Exhibit B-7-M-3 Form of Face of Class 7-M-3 Certificate
Exhibit C Form of Reverse of all
Certificates...................
Exhibit D-1 Loan Group 1 Mortgage Loan
Schedule...................
Exhibit D-2 Loan Group 2 Mortgage Loan
Schedule...................
Exhibit D-3 Loan Group 3 Mortgage Loan
Schedule...................
Exhibit D-4 Loan Group 4 Mortgage Loan
Schedule...................
Exhibit D-5 Loan Group 5 Mortgage Loan
Schedule...................
Exhibit D-6 Loan Group 6 Mortgage Loan
Schedule...................
Exhibit D-7 Loan Group 7 Mortgage Loan
Schedule...................
Exhibit E [RESERVED]
Exhibit F Form of Certification of Establishment of
Account.....
Exhibit G-1 Form of Transferor's
Certificate......................
Exhibit G-2A Form I of Transferee's
Certificate....................
Exhibit G-2B Form II of Transferee's
Certificate...................
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates.....................
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificates..........................................
Exhibit J [RESERVED]
Exhibit K Form of Special Servicing
Agreement...................
Exhibit L List of Recordation
States............................
Exhibit M Form of Initial Certification
........................
Exhibit N Form of Final
Certification...........................
Exhibit O Form of
Certification.................................
Exhibit P Form of Securities Administrator's
Certification......
Exhibit Q Form of Yield Maintenance
Agreements..................
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated October 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
The Trust Estate for federal income tax purposes will be treated
as
five real estate mortgage investment conduits (the "Upper-Tier
REMIC," the
"Middle-Tier REMIC," the "Lower-Tier REMIC," the "Group 7
Upper-Tier REMIC" and
the "Group 7 Lower-Tier REMIC," respectively, and each a
"REMIC"). The
Certificates (other than the Class 3-A-R, Class 3-A-MR, Class
3-A-LR, Class
7-CE, Class 7-R and Class 7-LR Certificates and the Group 7
Certificates) shall
constitute "regular interests" in the Upper-Tier REMIC. The
Group 7 Certificates
(exclusive of the right of such Certificates to receive Cap
Carryover Amounts)
and the Class 7-CE Certificates shall constitute "regular
interests" in the
Group 7 Upper-Tier REMIC. The Uncertificated Middle-Tier
Interests shall
constitute the "regular interests" in the Middle-Tier REMIC. The
Uncertificated
Lower-Tier Interests shall constitute the "regular interests" in
the Lower-Tier
REMIC. The Uncertificated Group 7 Lower-Tier Interests shall
constitute the
"regular interests" in the Group 7 Lower-Tier REMIC. The Class
3-A-R Certificate
shall be the "residual interest" in the Upper-Tier REMIC, the
Class 3-A-MR
Certificate shall be the "residual interest" in the Middle-Tier
REMIC, the Class
3-A-LR Certificate shall be the "residual interest" in the
Lower-Tier REMIC, the
Class 7-R Certificate shall be the "residual interest" in the
Group 7 Upper-Tier
REMIC and the Class 7-LR Certificate shall be the "residual
interest" in the
Group 7 Lower-Tier REMIC. The portion of the Trust Estate
consisting of the
Reserve Account, the Yield Maintenance Agreements, the rights of
the Group 7
Certificates to receive Cap Carryover Amounts and the obligation
of the Class
7-CE Certificates to pay Cap Carryover Amounts shall not be
assets of any REMIC
created hereunder, but rather shall be assets of the Grantor
Trust. The assets
of the Grantor Trust, the Certificates, the Uncertificated
Middle-Tier
Interests, the Uncertificated Lower-Tier Interests and the
Uncertificated Group
7 Lower-Tier Interests will represent the entire beneficial
ownership interest
in the Trust. The "latest possible maturity date" for federal
income tax
purposes of all interests created hereby will be the REMIC
Certificate Maturity
Date.
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:
<TABLE>
<CAPTION>
============== ============================= ==============
==================== =================
Integral
Minimum Multiples
Initial Class Certificate Pass-Through Denomination/ in
Excess
Classes Balance or Notional Amount Rate Percentage Interest of
Minimum
-------------- ----------------------------- --------------
-------------------- -----------------
<S> <C> <C> <C> <C>
Class 1-A-1 $40,000,000 (1) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 1-A-2 $82,430,000 (1) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 1-X-1 $40,000,000 (2) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 1-X-2 $82,430,000 (3) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 2-A-1 $44,903,500 (4) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 2-A-2 $44,903,500 (5) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-A-1 $20,000,000 (6) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-A-2 $133,825,000 (6) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-A-R $50 (7) $50 N/A
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-A-MR $25 (7) $25 N/A
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-A-LR $25 (7) $25 N/A
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-X-1 $20,000,000 (8) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 3-X-2 $133,825,000 (9) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 4-A-1 $40,000,000 (10) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 4-A-2 $50,455,000 (10) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 4-X-1 $40,000,000 (11) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 4-X-2 $50,455,000 (12) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 5-A-1 $107,009,000 (13) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-A-1 $91,563,000 (14) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-X-1 $91,563,000 0.950% $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-A-1 $145,872,000 (15) $1,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-CE (16) (16) N/A N/A
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-R N/A N/A N/A N/A
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-LR N/A N/A N/A N/A
-------------- ----------------------------- --------------
-------------------- -----------------
Class CB-1 $4,095,000 (17) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class CB-2 $1,881,000 (17) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class CB-3 $886,000 (17) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class CB-4 $996,000 (17) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class CB-5 $774,000 (17) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class CB-6 $443,341 (17) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class DB-1 $13,751,000 (18) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class DB-2 $4,144,000 (18) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class DB-3 $2,260,000 (18) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class DB-4 $2,261,000 (18) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class DB-5 $1,883,000 (18) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class DB-6 $1,130,888 (18) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-B-1 $2,369,000 (19) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-B-2 $1,679,000 (19) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-B-3 $938,000 (19) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-B-4 $1,184,000 (19) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-B-5 $592,000 (19) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 6-B-6 $395,880 (19) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-M-1 $4,981,000 (15) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-M-2 $3,637,000 (15) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
Class 7-M-3 $2,767,000 (15) $25,000 $1
-------------- ----------------------------- --------------
-------------------- -----------------
</TABLE>
------------
(1) For each Distribution Date occurring prior to and including
the
Distribution Date in October 2007, interest will accrue on
these
Certificates at a per annum rate equal to the Net WAC for the
Group 1
Mortgage Loans minus 0.4540% and 0.7915% per annum with respect
to the
Class 1-A-1 and Class 1-A-2 Certificates, respectively. For
each
Distribution Date occurring on and after the Distribution Date
in November
2007, interest will accrue on these Certificates at a per annum
rate equal
to the Net WAC for the Group 1 Mortgage Loans.
(2) Interest will accrue on the Class 1-X-1 Certificates through
the
Distribution Date in October 2007 at a per annum rate equal to
0.4540%. No
interest will accrue on the Class 1-X-1 Certificates on and
after the
Distribution Date in November 2007.
(3) Interest will accrue on the Class 1-X-2 Certificates through
the
Distribution Date in October 2007 at a per annum rate equal to
0.7915%. No
interest will accrue on the Class 1-X-2 Certificates on and
after the
Distribution Date in November 2007.
(4) Interest will accrue on these Certificates at a per annum
rate equal to the
Net WAC for the Group 2 Mortgage Loans plus 0.244%.
(5) Interest will accrue on these Certificates at a per annum
rate equal to the
Net WAC for the Group 2 Mortgage Loans minus 0.244%.
(6) For each Distribution Date occurring prior to and including
the
Distribution Date in October 2007, interest will accrue on
these
Certificates at a per annum rate equal to the Net WAC for the
Group 3
Mortgage Loans minus 0.6225% and 0.7675% per annum with respect
to the
Class 3-A-1 and Class 3-A-2 Certificates, respectively. For
each
Distribution Date occurring on and after the Distribution Date
in November
2007, interest will accrue on these Certificates at a per annum
rate equal
to the Net WAC for the Group 3 Mortgage Loans.
(7) For each Distribution Date, interest will accrue on these
Certificates at a
per annum rate equal to the Net WAC for the Group 3 Mortgage
Loans.
(8) Interest will accrue on the Class 3-X-1 Certificates through
the
Distribution Date in October 2007 at a per annum rate equal to
0.6225%. No
interest will accrue on the Class 3-X-1 Certificates on and
after the
Distribution Date in November 2007.
(9) Interest will accrue on the Class 3-X-2 Certificates through
the
Distribution Date in October 2007 at a per annum rate equal to
0.7675%. No
interest will accrue on the Class 3-X-2 Certificates on and
after the
Distribution Date in November 2007.
(10) For each Distribution Date occurring prior to and including
the
Distribution Date in September 2009, interest will accrue on
these
Certificates at a per annum rate equal to the Net WAC for the
Group 4
Mortgage Loans minus 0.683% and 0.738% per annum with respect to
the Class
4-A-1 and Class 4-A-2 Certificates, respectively. For each
Distribution
Date occurring on and after the Distribution Date in October
2009, interest
will accrue on these Certificates at a per annum rate equal to
the Net WAC
for the Group 4 Mortgage Loans.
(11) Interest will accrue on the Class 4-X-1 Certificates
through the
Distribution Date in September 2009 at a per annum rate equal to
0.683%. No
interest will accrue on the Class 4-X-1 Certificates on and
after the
Distribution Date in October 2009.
(12) Interest will accrue on the Class 4-X-2 Certificates
through the
Distribution Date in September 2009 at a per annum rate equal to
0.738%. No
interest will accrue on the Class 4-X-2 Certificates on and
after the
Distribution Date in October 2009.
(13) Interest will accrue on these Certificates at a per annum
rate equal to the
Net WAC for the Group 5 Mortgage Loans.
(14) Interest will accrue on these Certificates at a per annum
rate equal to the
Adjusted Net WAC for the Group 6 Mortgage Loans minus 0.950% per
annum.
(15) For each Distribution Date occurring prior to and including
the applicable
Termination Date, interest will accrue on these Certificates at
a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and
0.36%,
0.60%, 1.10% and 2.50% with respect to the Class 7-A-1, Class
7-M-1, Class
7-M-2 and Class 7-M-3 Certificates, respectively, and (ii) the
Group 7 Cap.
On each Distribution Date following the applicable Termination
Date,
interest will accrue on these Certificates at a per annum rate
equal to the
lesser of (i) the sum of One-Month LIBOR and 0.72%, 0.90%, 1.65%
and 3.75%
with respect to the Class 7-A-1, Class 7-M-1, Class 7-M-2 and
Class 7-M-3
Certificates, respectively, and (ii) the Group 7 Cap.
(16) Solely for REMIC purposes, the Class 7-CE Certificates will
(i) have an
initial Original Class Certificate Balance equal to the
Initial
Overcollateralization Amount and (ii) will bear interest on
their Notional
Amount.
(17) Interest will accrue on these Certificates as of any
Distribution Date at a
per annum rate equal to the weighted average (based on the
Group
Subordinate Amount for each Loan Group) of the Net WAC for each
of the
Group 1 and Group 2 Mortgage Loans.
(18) Interest will accrue on these Certificates as of any
Distribution Date at a
per annum rate equal to the weighted average (based on the
Group
Subordinate Amount for each Loan Group) of the Net WAC for each
of the
Group 3, Group 4 and Group 5 Mortgage Loans.
(19) Interest will accrue on these Certificates at a per annum
rate equal to the
Adjusted Net WAC for the Group 6 Mortgage Loans.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the context otherwise
requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
60+ Day Delinquent Loan: For each Distribution Date, each Group
7
Mortgage Loan (including each Group 7 Mortgage Loan in
foreclosure and each
Group 7 Mortgage Loan for which the Mortgagor has filed for
bankruptcy after the
Closing Date) with respect to which any portion of a Monthly
Payment is, as of
the Due Date in the prior calendar month, two months or more
past due and each
Group 7 Mortgage Loan relating to an REO Property.
7LT Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50%
of the Pool
Stated Principal Balance of the Group 7 Mortgage Loans and (ii)
the Group 7
Lower-Tier Rate minus the Marker Rate, divided by (b) 12.
7LT Marker Allocation Percentage: 50% of any amount payable from
or
loss attributable to the Group 7 Mortgage Loans, which shall be
allocated to
Regular Interest LT1AA, Regular Interest LT1A1, Regular Interest
LT1M1, Regular
Interest LT1M2, Regular Interest LT1M3 and Regular Interest
LT1ZZ.
7LT Overcollateralization Target Amount: 0.50% of the
Targeted
Overcollateralization Amount.
7LT Overcollateralized Amount: With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated
Principal Balances of
the Uncertificated Group 7 Lower-Tier Interests minus (ii) the
aggregate of the
Uncertificated Principal Balances of Regular Interest LT1A1,
Regular Interest
LT1M1, Regular Interest LT1M2 and Regular Interest LT1M3, in
each case as of
such date of determination.
7LT Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50%
of the Pool
Stated Principal Balance of the Group 7 Mortgage Loans and (ii)
1 minus a
fraction, the numerator of which is two times the aggregate of
the
Uncertificated Principal Balances of Regular Interest LT1A1,
Regular Interest
LT1M1, Regular Interest LT1M2 and Regular Interest LT1M3 and the
denominator of
which is the aggregate of the Uncertificated Principal Balances
of Regular
Interest LT1A1, Regular Interest LT1M1, Regular Interest LT1M2,
Regular Interest
LT1M3 and Regular Interest LT1ZZ.
7LT Sub WAC Allocation Percentage: 50% of any amount payable or
loss
attributable from the Group 7 Mortgage Loans, which shall be
allocated to
Regular Interest LT1XX.
Accrued Certificate Interest: For any Distribution Date and
each
Class of interest-bearing Certificates, one month's interest
accrued during the
related Interest Accrual Period at the applicable Pass-Through
Rate on the
related Class Certificate Balance or Notional Amount less, in
the case of the
Offered Group 7 Certificates, such Class' Interest Percentage of
Relief Act
Shortfalls for such Distribution Date.
Adjusted Net WAC: With respect to any Distribution Date and
the
Group 6 Mortgage Loans, a per annum rate equal to the product of
(i) 12 and (ii)
a fraction, the numerator of which is the aggregate amount of
interest due on
the Group 6 Mortgage Loans on the Due Date immediately preceding
such
Distribution Date at their respective Net Mortgage Interest
Rates minus the Net
Negative Amortization for such Distribution Date, and the
denominator of which
is the Pool Stated Principal Balance of the Group 6 Mortgage
Loans as of the Due
Date in the month preceding the month of such Distribution
Date.
Adjusted Pool Amount: With respect to any Distribution Date
and
Shifting Interest Loan Group, the Cut-off Date Pool Principal
Balance of the
Mortgage Loans in such Loan Group plus any Deferred Interest
previously added
thereto minus the sum of (i) all amounts in respect of principal
received in
respect of the Mortgage Loans in such Loan Group (including,
without limitation,
amounts received as Monthly Payments, Periodic Advances,
Principal Prepayments,
Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to
Holders of the Certificates of the Related Group on such
Distribution Date and
all prior Distribution Dates and (ii) the principal portion of
all Realized
Losses (other than Debt Service Reductions) incurred on the
Mortgage Loans in
such Loan Group from the Cut-off Date through the end of the
month preceding
such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Overcollateralization Release Amount: With respect to
any
Distribution Date, the lesser of (i) the Group 7 Principal
Remittance Amount and
(ii) the Overcollateralization Release Amount.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements hereto.
Applied Realized Loss Amount: With respect to each
Distribution
Date, the excess, if any, of the aggregate of (a) the Class
Certificate Balances
of the Offered Group 7 Certificates (after taking into account
the distribution
of the Group 7 Principal Distribution Amount on such
Distribution Date and any
increase in any Class Certificate Balance of the Offered Group 7
Certificates as
a result of Recoveries) over (b) the Pool Stated Principal
Balance for Loan
Group 7 as of the Due Date in the month of such Distribution
Date.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value determined in an appraisal
obtained by the
originator at origination of such Mortgage Loan or, in certain
cases, an
automated valuation model or tax assessed value and (b) the
sales price for such
property, except that, in the case of Mortgage Loans the
proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value
of the related
Mortgaged Property is the appraised value thereof determined in
an appraisal
obtained at the time of refinancing or, in certain cases, an
automated valuation
model or tax assessed value, or (ii) the appraised value
determined in an
appraisal made at the request of a Mortgagor subsequent to
origination in order
to eliminate the Mortgagor's obligation to keep a Primary
Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument in recordable form,
sufficient under
the laws of the jurisdiction wherein the related Mortgaged
Property is located
to give record notice of the sale of the Mortgage.
Available Funds: As to any Distribution Date, the sum of the
Group 7
Interest Remittance Amount and the Group 7 Principal Remittance
Amount for such
Distribution Date.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor
in
interest.
BANA: Bank of America, National Association, a national
banking
association, or its successor in interest.
BANA Servicing Agreement: The Servicing Agreement, dated October
29,
2004, by and between BAFC, as depositor, and BANA, as
servicer.
Book-Entry Certificate: All Classes of Certificates other than
the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the State of North
Carolina, the State of
New York, the State of Minnesota, the State of Maryland, the
state in which the
master servicing offices of the Master Servicer is located or
the 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
5.04(c).
Cap Carryover Amount: If on any Distribution Date the
Accrued
Certificate Interest for any Class of Offered Group 7
Certificates is based upon
clause (ii) of the Group 7 Cap, the excess of (i) the amount of
interest such
Class would have been entitled to receive on such Distribution
Date based on the
related Pass-Through Rate (without regard to the Group 7 Cap),
over (ii) the
amount of interest such Class received on such Distribution Date
based on the
Group 7 Cap, together with the unpaid portion of any such excess
from prior
Distribution Dates (and interest accrued thereon at the then
applicable
Pass-Through Rate on such Class).
CB Crossed Group: Any of Group 1 or Group 2.
CB Crossed Loan Group: Any of Loan Group 1 or Loan Group 2.
CB Crossed Loan Group Senior Percentage: With respect to any
Distribution Date, the percentage, carried six places rounded
up, obtained by
dividing the aggregate Class Certificate Balance of the Senior
Certificates of
the CB Crossed Groups immediately prior to such Distribution
Date by the
aggregate Pool Stated Principal Balance of the CB Crossed Loan
Groups with
respect to such Distribution Date.
CB Crossed Loan Group Subordinate Percentage: As to any
Distribution
Date, the aggregate Class Certificate Balance of the Class CB
Certificates
divided by the aggregate Pool Stated Principal Balance for Loan
Group 1 and Loan
Group 2.
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2004-B that are issued
pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate (other than
the
Class X, Class 7-CE, Class 7-R and Class 7-LR 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 X, Class 7-CE,
Class 7-R and
Class 7-LR 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 or the Master Servicer or any affiliate
thereof shall be
deemed not to be outstanding and the Percentage Interest and
Voting Rights
evidenced thereby shall not be taken into account in determining
whether the
requisite amount of Percentage Interests or Voting Rights, as
the case may be,
necessary to effect any such consent has been obtained, unless
such entity is
the registered owner of the entire Class of Certificates,
provided that the
Securities Administrator shall not be responsible for knowing
that any
Certificate is registered in the name of an affiliate of the
Depositor or the
Master Servicer unless one of its Responsible Officers has
actual knowledge
thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class
1-X-1, Class 1-X-2, Class 2-A-1, Class 2-A-2, Class 3-A-1, Class
3-A-2, Class
3-A-R, Class 3-A-MR, Class 3-A-LR, Class 3-X-1, Class 3-X-2,
Class 4-A-1, Class
4-A-2, Class 4-X-1, Class 4-X-2, Class 5-A-1, Class 6-A-1, Class
6-X-1, Class
7-A-1, Class 7-CE, Class 7-R, Class 7-LR, Class 7-M-1, Class
7-M-2, Class 7-M-3,
Class CB-1, Class CB-2, Class CB-3, Class CB-4, Class CB-5,
Class CB-6, Class
DB-1, Class DB-2, Class DB-3, Class DB-4, Class DB-5, Class
DB-6, Class 6-B-1,
Class 6-B-2, Class 6-B-3, Class 6-B-4, Class 6-B-5 and Class
6-B-6 Certificates,
as the case may be.
Class 1-X-1 Notional Amount: As to any Distribution Date and
the
Class 1-X-1 Certificates, the Class Certificate Balance of the
Class 1-A-1
Certificates.
Class 1-X-2 Notional Amount: As to any Distribution Date and
the
Class 1-X-2 Certificates, the Class Certificate Balance of the
Class 1-A-2
Certificates.
Class 3-X-1 Notional Amount: As to any Distribution Date and
the
Class 3-X-1 Certificates, the Class Certificate Balance of the
Class 3-A-1
Certificates.
Class 3-X-2 Notional Amount: As to any Distribution Date and
the
Class 3-X-2 Certificates, the Class Certificate Balance of the
Class 3-A-2
Certificates.
Class 4-X-1 Notional Amount: As to any Distribution Date and
the
Class 4-X-1 Certificates, the Class Certificate Balance of the
Class 4-A-1
Certificates.
Class 4-X-2 Notional Amount: As to any Distribution Date and
the
Class 4-X-2 Certificates, the Class Certificate Balance of the
Class 4-A-2
Certificates.
Class 6-B Certificates: The Class 6-B-1, Class 6-B-2, Class
6-B-3,
Class 6-B-4, Class 6-B-5 and Class 6-B-6 Certificates.
Class 6-X-1 Notional Amount: As to any Distribution Date and
the
Class 6-X-1 Certificates, the Class Certificate Balance of the
Class 6-A-1
Certificates.
Class 7-CE Distributable Amount: With respect to any
Distribution
Date, the sum of (i) the interest accrued on such Class 7-CE
Certificate at its
Pass-Through Rate calculated on its Notional Amount less the
amount (without
duplication) of Cap Carryover Amounts paid pursuant to Section
5.03(c)(xii),
(ii) any remaining Aggregate Overcollateralization Release
Amounts, (iii) the
aggregate of amounts remaining in the Reserve Account after the
distributions in
Section 3.09(h)(i)(A).
Class 7-CE Uncertificated Principal Balance: As of any date
of
determination, the Initial Overcollateralization Amount minus
the sum of (i) any
Realized Losses allocated thereto and (ii) any amounts
distributed (or deemed
distributed) to the Class 7-CE Certificates with respect
thereto.
Class 7-M-1 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as long as a Trigger
Event is not in
effect, the excess of (x) the sum of (i) the Class Certificate
Balance of the
Class 7-A-1 Certificates (after taking into account the payment
of the Group 7
Senior Principal Distribution Amount on such Distribution Date)
and (ii) the
Class Certificate Balance of the Class 7-M-1 Certificates
immediately prior to
such Distribution Date over (y) the lesser of (A) the product of
(i) 90.80% and
(ii) the Pool Stated Principal Balance for Loan Group 7 as of
the Due Date in
the month of such Distribution Date and (B) the amount by which
the Pool Stated
Principal Balance for Loan Group 7 as of the Due Date in the
month of such
Distribution Date exceeds the product of (i) 0.55% and (ii) the
Cut-off Date
Pool Principal Balance for Loan Group 7.
Class 7-M-1 Realized Loss Amortization Amount: As to the Class
7-M-1
Certificates and as of any Distribution Date, the lesser of (x)
the Unpaid
Realized Loss Amount for the Class 7-M-1 Certificates as of such
Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (iv)
hereof, in each
case for such Distribution Date.
Class 7-M-2 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as long as a Trigger
Event is not in
effect, the excess of (x) the sum of (i) the Class Certificate
Balance of the
Class 7-A-1 Certificates (after taking into account the payment
of the Group 7
Senior Principal Distribution Amount on such Distribution Date),
(ii) the Class
Certificate Balance of the Class 7-M-1 Certificates (after
taking into account
the payment of the Class 7-M-1 Principal Distribution Amount on
such
Distribution Date) and (iii) the Class Certificate Balance of
the Class 7-M-2
Certificates immediately prior to such Distribution Date over
(y) the lesser of
(A) the product of (i) 95.40% and (ii) the Pool Stated Principal
Balance for
Loan Group 7 as of the Due Date in the month of such
Distribution Date and (B)
the amount by which the Pool Stated Principal Balance for Loan
Group 7 as of the
Due Date in the month of such Distribution Date exceeds the
product of (i) 0.55%
and (ii) the Cut-off Date Pool Principal Balance for Loan Group
7.
Class 7-M-2 Realized Loss Amortization Amount: As to the Class
7-M-2
Certificates and as of any Distribution Date, the lesser of (x)
the Unpaid
Realized Loss Amount for the Class 7-M-2 Certificates as of such
Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (vii)
hereof, in each
case for such Distribution Date.
Class 7-M-3 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as long as a Trigger
Event is not in
effect, the excess of (x) the sum of (i) the Class Certificate
Balance of the
Class 7-A-1 Certificates (after taking into account the payment
of the Group 7
Senior Principal Distribution Amount on such Distribution Date),
(ii) the Class
Certificate Balance of the Class 7-M-1 Certificates (after
taking into account
the payment of the Class 7-M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Class Certificate Balance of the
Class 7-M-2
Certificates (after taking into account the payment of the Class
7-M-2 Principal
Distribution Amount on such Distribution Date), and (iv) the
Class Certificate
Balance of the Class 7-M-3 Certificates immediately prior to
such Distribution
Date over (y) the lesser of (A) the product of (i) 98.90% and
(ii) the Pool
Stated Principal Balance for Loan Group 7 as of the Due Date in
the month of
such Distribution Date and (B) the amount by which the Pool
Stated Principal
Balance for Loan Group 7 as of the Due Date in the month of such
Distribution
Date exceeds the product of (i) 0.55% and (ii) the Cut-off Date
Pool Principal
Balance for Loan Group 7.
Class 7-M-3 Realized Loss Amortization Amount: As to the Class
7-M-3
Certificates and as of any Distribution Date, the lesser of (x)
the Unpaid
Realized Loss Amount for the Class 7-M-3 Certificates as of such
Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (x)
hereof, in each
case for such Distribution Date.
Class A Certificates: The Class 1-A-1, Class 1-A-2, Class
2-A-1,
Class 2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-R, Class
3-A-MR, Class 3-A-LR,
Class 4-A-1, Class 4-A-2, Class 5-A-1, Class 6-A-1 and Class
7-A-1 Certificates.
Class B Certificates: The Class CB Certificates, the Class
DB
Certificates and the Class 6-B Certificates.
Class CB Certificates: The Class CB-1, Class CB-2, Class CB-3,
Class
CB-4, Class CB-5 and Class CB-6 Certificates.
Class CB Subordinate Balance Ratio: As of any date of
determination,
the ratio between the principal balances of the Class 1-LS
Interest and the
Class 2-LS Interest, equal to the ratio between the Group
Subordinate Amount of
Loan Group 1 and the Group Subordinate Amount of Loan Group
2.
Class Certificate Balance: Class Certificate Balance means,
with
respect to (i) any Class of Shifting Interest Certificates
(other than the Class
X Certificates) and any date of determination, and subject to
Section 5.04(g),
the Initial Class Certificate Balance of such Class minus (A)
the sum of (i) all
distributions of principal made with respect thereto and (ii)
all reductions in
Class Certificate Balance previously allocated thereto pursuant
to Section
5.04(a) plus (B) the sum of (i) all increases in the Class
Certificate Balance
previously allocated thereto pursuant to Section 5.04(a) plus
(C) in the case of
the Class 6-A-1 Certificates and Class 6-B Certificates, the
portion of Net
Negative Amortization for the Group 6 Mortgage Loans and
allocated to the
related Class of Certificates pursuant to Section 5.04(h) and
(ii) any Class of
Offered Group 7 Certificates and any Distribution Date, the
Initial Class
Certificate Balance of such Class (a) reduced by the sum of (i)
all amounts
actually distributed in respect of principal of such Class on
all prior
Distribution Dates and (ii) Applied Realized Loss Amounts
allocated thereto for
previous Distribution Dates pursuant to Section 5.05 and (b)
increased by any
Recoveries allocated to such Class for previous Distribution
Dates. The Class X
Certificates are Interest-Only Certificates and have no Class
Certificate
Balance. The Class 7-CE, Class 7-R and Class 7-LR Certificates
do not have a
Class Certificate Balance.
Class DB Certificates: The Class DB-1, Class DB-2, Class DB-3,
Class
DB-4, Class DB-5 and Class DB-6 Certificates.
Class DB Subordinate Balance Ratio: As of any date of
determination,
the ratio among the principal balances of the Class 3-LS
Interest, the Class
4-LS Interest and the Class 5-LS Interest, equal to the ratio
among the Group
Subordinate Amount of Loan Group 3, the Group Subordinate Amount
of Loan Group 4
and the Group Subordinate Amount of Loan Group 5.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class of Shifting Interest Certificates, the
amount by which
Accrued Certificate Interest for such Class (as reduced pursuant
to Section
5.02(c)) exceeds the amount of interest actually distributed on
such Class on
such Distribution Date pursuant to clause (i) of the definition
of "Interest
Distribution Amount."
Class M Certificate: Any one of the Certificates with an "M"
designated on the face thereof substantially in the form annexed
hereto as
Exhibit B-7-M-1, Exhibit B-7-M-2 and Exhibit B-7-M-3, executed
by the Securities
Administrator on behalf of the Trust and authenticated and
delivered by the
Securities Administrator, representing the right to
distributions as set forth
herein and therein.
Class M Certificateholders: Collectively, the Holders of the
Class M
Certificates.
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class of Shifting Interest Certificates,
the amount by
which the aggregate Class Interest Shortfalls for such Class on
prior
Distribution Dates exceeds the amount of interest actually
distributed on such
Class on such prior Distribution Dates pursuant to clause (ii)
of the definition
of "Interest Distribution Amount."
Class X Certificates: The Class 1-X-1, Class 1-X-2, Class
3-X-1,
Class 3-X-2, Class 4-X-2, Class 4-X-2 and Class 6-X-1
Certificates.
Closing Date: October 29, 2004.
Code: The Internal Revenue Code of 1986, as amended.
COFI Index: A rate per annum that is defined to be the
monthly
weighted-average interest rate paid by 11th Federal Home Loan
Bank District
savings institutions for savings and checking accounts, advances
from the
Federal Home Loan Bank of San Francisco, and other sources of
funds, as
published by the Federal Home Loan Bank of San Francisco and
most recently
available 15 days before the applicable Rate Adjustment Date
Compensating Interest: With respect to any Distribution Date
and
Servicer, an amount equal to the lesser of (a) the aggregate
Servicing Fee
payable to such Servicer for 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 the Mortgage
Loans serviced by
such Servicer for such Distribution Date. To the extent that
Compensating
Interest for a Servicer is calculated pursuant to clause (a) of
the previous
sentence, such Compensating Interest shall be allocated to the
CB Crossed Loan
Groups in the aggregate, the DB Crossed Loan Groups in the
aggregate, Loan Group
6 and Loan Group 7, pro rata, based on the aggregate Prepayment
Interest
Shortfalls for such Distribution Date on the Mortgage Loans in
such Loan Group
or Loan Groups, as the case may be, serviced by such
Servicer.
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-B, 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-B, and for certificate
transfer purposes is
located at Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479,
Attention: Corporate Trust Services - BAFC 2004-B, 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 Classes: With respect to the Group 7 Lower-Tier
REMIC
and the Group 7 Upper-Tier REMIC, the following Classes shall be
Corresponding
Classes:
Corresponding Group 7 Corresponding Group 7
Lower-Tier Class Upper-Tier Class
--------------------- ------------------------
LT1A1 Class 7-A-1 Certificates
LT1M1 Class 7-M-1 Certificates
LT1M2 Class 7-M-2 Certificates
LT1M3 Class 7-M-3 Certificates
Corresponding Upper-Tier Class or Classes: As to each of the
following Uncertificated Middle-Tier Interests, the
Corresponding Upper-Tier
Class or Classes, as follows:
Uncertificated Middle-Tier Interest Corresponding Upper-Tier
Class or Classes
-----------------------------------
-----------------------------------------
Class 1-A-M1 Interest Class 1-A-1 and Class 1-X-1
Certificates
Class 1-A-M2 Interest Class 1-A-2 and Class 1-X-2
Certificates
Class 2-A-M1 Interest Class 2-A-1 and Class 2-A-2
Certificates
Class 3-A-M1 Interest Class 3-A-1 and Class 3-X-1
Certificates
Class 3-A-M2 Interest Class 3-A-2 and Class 3-X-2
Certificates
Class 3-A-MUR Interest Class 3-A-R Certificate
Class 4-A-M1 Interest Class 4-A-1 and Class 4-X-1
Certificates
Class 4-A-M2 Interest Class 4-A-2 and Class 4-X-2
Certificates
Class 5-A-M1 Interest Class 5-A-1 Certificates
Class 6-A-M1 Interest Class 6-A-1 and Class 6-X-1
Certificates
Class CB-M1 Interest Class CB-1 Certificates
Class CB-M2 Interest Class CB-2 Certificates
Class CB-M3 Interest Class CB-3 Certificates
Class CB-M4 Interest Class CB-4 Certificates
Class CB-M5 Interest Class CB-5 Certificates
Class CB-M6 Interest Class CB-6 Certificates
Class DB-M1 Interest Class DB-1 Certificates
Class DB-M2 Interest Class DB-2 Certificates
Class DB-M3 Interest Class DB-3 Certificates
Class DB-M4 Interest Class DB-4 Certificates
Class DB-M5 Interest Class DB-5 Certificates
Class DB-M6 Interest Class DB-6 Certificates
Class 6-B-M1 Interest Class 6-B-1 Certificates
Class 6-B-M2 Interest Class 6-B-2 Certificates
Class 6-B-M3 Interest Class 6-B-3 Certificates
Class 6-B-M4 Interest Class 6-B-4 Certificates
Class 6-B-M5 Interest Class 6-B-5 Certificates
Class 6-B-M6 Interest Class 6-B-6 Certificates
Countrywide Servicing Agreement: The Master Mortgage Loan
Purchase
and Servicing Agreement, dated as of April 1, 2003, by and
between BANA (as
successor in interest to Banc of America Mortgage Capital
Corporation), and
Countrywide Home Loans, Inc., (as amended by (i) that certain
Amendment No. 1,
dated as of July 1, 2003, by and among Banc of America Mortgage
Capital
Corporation, Countrywide Home Loans, Inc. and BANA and (ii) that
certain
Amendment No. 2, dated as of September 1, 2004, by and among
Banc of America
Mortgage Capital Corporation, Countrywide Home Loans, Inc. and
BANA).
Custodial Agreement: The Wachovia Custodial Agreement or the
Treasury Bank Custodial Agreement.
Custodian: Initially, the Trustee, with respect to the
Wachovia
Custodial Agreement and Treasury Bank, with respect to the
Treasury Bank
Custodial Agreement and thereafter the Custodian, if any,
hereafter appointed by
the Trustee pursuant to Section 9.12. The Custodian may (but
need not) be the
Trustee or any Person directly or indirectly controlling or
controlled by or
under common control of either of them. None of any Servicer,
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 each
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: October 1, 2004.
Cut-off Date Pool Principal Balance: For each Loan Group,
the
aggregate of the Cut-off Date Principal Balances of the Mortgage
Loans in such
Loan Group which is $127,665,245.08 for Loan Group 1,
$93,647,096.62 for Loan
Group 2, $164,959,901.43 for Loan Group 3, $97,003,262.99 for
Loan Group 4,
$114,755,823.68 for Loan Group 5, $98,720,880.05 for Loan Group
6 and
$158,127,135.17 for Loan Group 7.
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.
DB Crossed Group: Any of Group 3, Group 4 or Group 5.
DB Crossed Loan Group: Any of Loan Group 3, Loan Group 4 or
Loan
Group 5.
DB Crossed Loan Group Senior Percentage: With respect to any
Distribution Date, the percentage, carried six places rounded
up, obtained by
dividing the aggregate Class Certificate Balance of the Senior
Certificates of
the DB Crossed Groups immediately prior to such Distribution
Date by the
aggregate Pool Stated Principal Balance of the DB Crossed Loan
Groups with
respect to such Distribution Date.
DB Crossed Loan Group Subordinate Percentage: As to any
Distribution
Date, the aggregate Class Certificate Balance of the Class DB
Certificates
divided by the aggregate Pool Stated Principal Balance for Loan
Group 3, Loan
Group 4 and Loan Group 5.
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
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
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.
Deferred Interest: With respect to any Mortgage Loan identified
on
the Mortgage Loan Schedule as having the possibility of negative
amortization,
the excess, if any, of interest accrued since the previous Due
Date at the
applicable Mortgage Interest Rate over the Monthly Payment due
on the related
Due Date.
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.
Distribution Account: The Eligible Account created and
maintained by
the Securities Administrator pursuant to Section 3.09(c) in the
name of the
Securities Administrator 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-B." The Distribution Account shall be deemed to consist of
ten
sub-accounts; one for each Loan Group and three sub-accounts
referred to herein
as the Middle-Tier Sub Account, the Upper-Tier Certificate
Sub-Account and the
Group 7 Upper-Tier Certificate Sub-Account, respectively. Funds
in the
Distribution Account shall be held in trust for the Holders of
the Certificates
for the uses and purposes set forth in this Agreement.
Distribution Date: The 20th day of each month beginning in
November
2004 (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 pursuant to the Wells Fargo
Servicing Agreement 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.
ERISA: The Employee Retirement Income Security Act of 1974,
as
amended.
ERISA Restricted Certificates: Any of the Class 7-CE, Class
CB-4,
Class CB-5, Class CB-6, Class DB-1, Class DB-2, Class DB-3,
Class DB-4, Class
DB-5, Class DB-6, Class 6-B-4, Class 6-B-5 or Class 6-B-6
Certificates.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes,
assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard
insurance premiums
and other payments as may be required to be escrowed by the
Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or
Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously
reimbursed to the
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.
Extra Principal Distribution Amount: As of any Distribution
Date,
the lesser of (x) the Monthly Excess Interest Amount for such
Distribution Date
and (y) the Overcollateralization Deficiency for such
Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates will be made
pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated by the Depositor by
written notice to
the 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(a).
Fractional Interest: As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the
REMICs
consisting of (a) the right of the Offered Group 7 Certificates
to receive Cap
Carryover Amounts, (b) each Yield Maintenance Agreement, the
Reserve Account and
the beneficial interest of the Class 7-CE Certificates with
respect thereto and
(c) the obligation of the Class 7-CE Certificates to pay Cap
Carryover Amounts.
GreenPoint Servicing Agreement: The Flow Sale and Servicing
Agreement, dated as of September 1, 2004, by and between BANA
and GreenPoint
Mortgage Funding, Inc., as amended by that certain Amendment No.
1, dated as of
October 1, 2004, by and between BANA and GreenPoint Mortgage
Funding, Inc.
Gross Margin: As to each Mortgage Loan, the fixed percentage
set
forth in the related Mortgage Note and indicated in the Mortgage
Loan Schedule
as the "Gross Margin," which percentage is added to the Index on
each Rate
Adjustment Date to determine (subject to rounding, the Periodic
Cap and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until
the next Rate
Adjustment Date.
Group: Any of Group 1, Group 2, Group 3, Group 4, Group 5, Group
6
or Group 7.
Group 1: The Group 1 Senior Certificates.
Group 1 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 1 Mortgage Loans.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-2, Class
1-X-1
and Class 1-X-2 Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 2 Mortgage Loans.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-2
hereto.
Group 2 Senior Certificates: Class 2-A-1 and Class 2-A-2
Certificates.
Group 3: The Group 3 Senior Certificates.
Group 3 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 3 Mortgage Loans.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-3
hereto.
Group 3 Senior Certificates: Class 3-A-1, Class 3-A-2, Class
3-A-R,
Class 3-A-MR, Class 3-A-LR, Class 3-X-1 and Class 3-X-2
Certificates.
Group 4: The Group 4 Senior Certificates.
Group 4 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 4 Mortgage Loans.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-4
hereto.
Group 4 Senior Certificates: Class 4-A-1, Class 4-A-2, Class
4-X-1
and Class 4-X-2 Certificates.
Group 5: The Group 5 Senior Certificates.
Group 5 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 5 Mortgage Loans.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-5
hereto.
Group 5 Senior Certificates: Class 5-A-1 Certificates.
Group 6: The Group 6 Senior Certificates and Class 6-B
Certificates.
Group 6 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Adjusted Net WAC for the Group 6 Mortgage
Loans.
Group 6 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-6
hereto.
Group 6 Senior Certificates: Class 6-A-1 and Class 6-X-1
Certificates.
Group 7: The Group 7 Senior Certificates and the Class M
Certificates.
Group 7 Cap: As of any Distribution Date and the Offered Group
7
Certificates, a per annum rate equal to the lesser of (i) 11.00%
and (ii) the
Net WAC for the Group 7 Mortgage Loans.
Group 7 Certificates: The Group 7 Senior Certificates, the Class
M
Certificates, the Class 7-CE Certificates, the Class 7-R
Certificates and the
Class 7-LR Certificates.
Group 7 Interest Remittance Amount: As of any Distribution Date,
the
sum, without duplication, of (i) all interest due and collected
or advanced with
respect to the payments due on the Group 7 Mortgage Loans on the
Due Date in the
calendar month in which such Distribution Date occurs and
received by the
Servicers on or prior to the Determination Date for such
Distribution Date (less
the Servicing Fees and Securities Administrator Fees for such
Mortgage Loans,
amounts available for reimbursement of Advances pursuant to the
applicable
Servicing Agreement or this Agreement and expenses and
indemnities reimbursable
pursuant to this Agreement or the Servicing Agreements), (ii)
all Compensating
Interest paid by the Servicers for such Distribution Date with
respect to the
Group 7 Mortgage Loans, (iii) the portion of any payment in
connection with any
Principal Prepayment, substitution, Repurchase Price, Insurance
Proceeds or Net
Liquidation Proceeds relating to interest with respect to such
Mortgage Loans
received during the prior calendar month, (iv) on the
Distribution Date on which
the Group 7 Mortgage Loans and related REO Property are sold at
auction in
accordance with Section 10.01 hereof, that portion of the
Termination Price in
respect of interest and (v) any Reimbursement Amount relating to
the Group 7
Mortgage Loans received during the prior calendar month.
Group 7 Lower-Tier Distribution Amount: As defined in
Section
5.11(b).
Group 7 Lower-Tier REMIC: As defined in the Preliminary
Statement,
the segregated asset pool, the assets of which consist of the
Group 7 Mortgage
Loans, such amounts as shall from time to time be held in
respect of the Group 7
Mortgage Loans in the Distribution Account (other than amounts
held in respect
of the Group 7 Upper-Tier Certificate Sub-Account), the
insurance policies, if
any, relating to a Group 7 Mortgage Loan and the Mortgaged
Property which
secured a Group 7 Mortgage Loan and which has been acquired by
foreclosure or
deed in lieu of foreclosure.
Group 7 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 7 Mortgage Loans.
Group 7 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-7
hereto.
Group 7 Principal Distribution Amount: As to any Distribution
Date,
the sum of (i) the Group 7 Principal Remittance Amount minus
the
Overcollateralization Release Amount, if any, and (ii) the Extra
Principal
Distribution Amount, if any.
Group 7 Principal Remittance Amount: With respect to any
Distribution Date and Group 7 Mortgage Loans, to the extent of
funds available
therefor, the sum (less amounts available for reimbursement to
the Servicers of
Advances and expenses pursuant to the applicable Servicing
Agreement, amounts
reimbursable or payable to the Master Servicer, Securities
Administrator or
Trustee pursuant to this Agreement of: (i) each payment of
principal on a
Mortgage Loan due on the Due Date in the month of such
Distribution Date and
received by the Servicers on or prior to the related
Determination Date, and any
Advances with respect thereto, (ii) all Principal Prepayments
received by the
applicable Servicer during the prior calendar month, (iii)
Insurance Proceeds,
Net Liquidation Proceeds and Recoveries allocable to principal
actually
collected by the applicable Servicer during the prior calendar
month, (iv) with
respect to Defective Mortgage Loans repurchased with respect to
the prior
calendar month, the portion of the Repurchase Price allocable to
principal, (v)
any Substitution Adjustment Amounts paid during the prior
calendar month and
(vi) on the Distribution Date on which the Group 7 Mortgage
Loans and related
REO Property are sold at auction in accordance with Section
10.01 hereof, that
portion of the Termination Price in respect of principal.
Group 7 Senior Certificates: Class 7-A-1 Certificates.
Group 7 Senior Principal Distribution Amount: With respect to
any
Distribution Date, (i) before the Stepdown Date or as to which a
Trigger Event
is in effect, the lesser of (a) the Class Certificate Balance of
the Class 7-A-1
Certificates immediately prior to such Distribution Date and (b)
the Group 7
Principal Distribution Amount and (ii) on or after the Stepdown
Date and as long
as a Trigger Event is not in effect, the excess of (a) the Class
Certificate
Balance of the Class 7-A-1 Certificates immediately prior to
such Distribution
Date over (b) the lesser of (x) the product of (i) 84.50% and
(ii) the Pool
Stated Principal Balance for Loan Group 7 as of the Due Date in
the month of
such Distribution Date and (y) the amount by which the Pool
Stated Principal
Balance for Loan Group 7 as of the Due Date in the month of such
Distribution
Date exceeds the product of (i) 0.55% and (ii) the Cut-off Date
Pool Principal
Balance for Loan Group 7.
Group 7 Upper-Tier Certificate Sub-Account: The sub-account of
the
Distribution Account designated by the Securities Administrator
pursuant to
Section 3.09(g).
Group 7 Upper-Tier REMIC: As defined in the Preliminary
Statement,
the segregated asset pool, the assets of which consist of the
Group 7
Uncertificated Lower-Tier Interests and such amounts as shall
from time to time
be deemed to be held in the Group 7 Upper-Tier Certificate
Sub-Account.
Group Subordinate Amount: With respect to any Distribution Date
and
any Shifting Interest Loan Group, the excess of the Pool Stated
Principal
Balance for such Loan Group over the aggregate Class Certificate
Balance of the
Senior Certificates of the Related Group immediately prior to
such date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact independent of the Depositor,
the Trustee, the
Securities Administrator, the Master Servicer and the Servicers,
(ii) does not
have any direct financial interest or any material indirect
financial interest
in the Depositor, the Trustee, the Securities Administrator, the
Master Servicer
or the Servicers or in an affiliate of any of them, and (iii) is
not connected
with the Depositor, the Trustee, the Securities Administrator,
the Master
Servicer or the Servicers as an officer, employee, promoter,
underwriter,
trustee, partner, director or person performing similar
functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of
the
One-Year CMT Index, the One-Year LIBOR Index, the Six-Month
LIBOR Index or the
COFI Index. The Index applicable to each Mortgage Loan will be
indicated on the
Mortgage Loan Schedule. In the event that any such Index is no
longer available,
the applicable Servicer will select a substitute Index in
accordance with the
terms of the related Mortgage Note and in compliance with
federal and state law.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance set forth in the Preliminary
Statement.
Initial Notional Amount: As to each Class of Interest-Only
Certificates, the Notional Amount set forth in the Preliminary
Statement.
Initial Overcollateralization Amount: $870,135.17.
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 Shifting Interest 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 each Distribution Date and each Class of Offered Group 7
Certificates, the
period from and including the 20th day of the calendar month
preceding the
calendar month of such Distribution Date, or in the case of the
first
Distribution Date, from the Closing Date, through and including
the 19th day of
the calendar month of such Distribution Date. Notwithstanding
the foregoing, for
purposes of calculating Accrued Certificate Interest, each
Interest Accrual
Period (other than the first Interest Accrual Period, with
respect to the
Offered Group 7 Certificates), shall be deemed to consist of 30
days.
Interest Carry Forward Amount: For any Class of Offered Group
7
Certificates and any Distribution Date, the sum of (a) the
excess, if any, of
the Accrued Certificate Interest and any Interest Carry Forward
Amount for the
prior Distribution Date, over the amount in respect of interest
actually
distributed on such Class on such prior Distribution Date and
(b) interest on
such excess at the applicable Pass-Through Rate for the related
Interest Accrual
Period.
Interest Distribution Amount: For any Distribution Date and
each
Class of Shifting Interest Certificates, the sum of (i) the
Accrued Certificate
Interest, subject to reduction pursuant to Section 5.02(c) and
(ii) any Class
Unpaid Interest Shortfall for such Class.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no distributions of principal.
The Class X
Certificates are the only Classes of Interest-Only
Certificates.
LIBOR Business Day: Any day on which banks in the London,
England
and The City of New York are open and conducting transactions in
foreign
currency and exchange.
LIBOR Determination Date: With respect to the Offered Group
7
Certificates and each Interest Accrual Period (after the first
Interest Accrual
Period), the second LIBOR Business Day prior to the day on which
such Interest
Accrual Period commences.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
calendar month preceding the month of such Distribution Date and
as to which the
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 Group: Any of Loan Group 1, Loan Group 2, Loan Group 3,
Loan
Group 4, Loan Group 5, Loan Group 6 or Loan Group 7.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan Group 5: The Group 5 Mortgage Loans.
Loan Group 6: The Group 6 Mortgage Loans.
Loan Group 7: The Group 7 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed as a percentage, the
numerator of
which is the outstanding principal balance of the related
Mortgage Loan at the
date of determination and the denominator of which is the
Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section
5.11(a).
Lower-Tier REMIC: As defined in the Preliminary Statement,
the
segregated asset pool, the assets of which consist of the
Mortgage Loans (other
than the Group 7 Mortgage Loans), such amounts as shall from
time to time be
held in the Distribution Account (other than amounts held in
respect of the
Middle-Tier Sub-Account or the Upper-Tier Certificate
Sub-Account or any amounts
held in respect of the Group 7 Mortgage Loans or in the Group 7
Upper-Tier
Certificate Sub-Account), the insurance policies, if any,
relating to a Mortgage
Loan and the Mortgaged Property which secured a Mortgage Loan
and which has been
acquired by foreclosure or deed in lieu of foreclosure.
LPMI Policy: A lender-paid Primary Mortgage Insurance
Policy.
Marker Rate: With respect to the Class 7-CE Certificates and
any
Distribution Date, a per annum rate equal to two (2) times the
weighted average
of the Uncertificated REMIC Pass-Through Rates for Regular
Interest LT1A1,
Regular Interest LT1M1, Regular Interest LT1M2, Regular Interest
LT1M3 and
Uncertificated Group 7 Regular Interest LT1ZZ, (i) with the rate
on each such
Uncertificated Group 7 Regular Interest (other than Regular
Interest LT1ZZ)
subject to a cap equal to the Pass-Through Rate of its
Corresponding Class
(taking into account in determining any such Pass-through Rate
the imposition of
the Group 7 Cap as described in footnote 15 to the table in the
Preliminary
Statement relating to the Certificates) for the purposes of this
calculation and
(ii) with the rate on Regular Interest LT1ZZ subject to a cap of
zero for the
purpose of this calculation.
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-B."
Master Servicer Custodial Account Reinvestment Income: For
each
Distribution Date, all income and gains net of any losses
realized since the
preceding Distribution Date from Permitted Investments of funds
in the Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in Section
3.23(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.
Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount:
With
respect to any Distribution Date, the excess of (a) accrued
interest at the
Group 7 Lower-Tier Rate applicable to Regular Interest LT1ZZ for
such
Distribution Date on a balance equal to the Uncertificated
Principal Balance of
Regular Interest LT1ZZ minus the 7LT Overcollateralized Amount,
in each case for
such Distribution Date, over (b) Uncertificated Accrued Interest
on Regular
Interest LT1A1, Regular Interest LT1M1, Regular Interest LT1M2
and Regular
Interest LT1M3, each subject to a cap equal to the Pass-Through
Rate of the
related Corresponding Class for the purpose of this
calculation.
Middle-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the Securities Administrator
pursuant to
Section 3.09(g).
Middle-Tier REMIC: As defined in the Preliminary Statement,
the
segregated asset pool, the assets of which consist of the
Uncertificated
Lower-Tier Interests and such amounts as shall from time to time
be deemed to be
held in the Middle-Tier Certificate Sub-Account.
Monthly Excess Cashflow Amount: The sum of the Monthly
Excess
Interest Amount, the Overcollateralization Release Amount and
(without
duplication) any portion of the Group 7 Principal Distribution
Amount remaining
after principal distributions on the Offered Group 7
Certificates.
Monthly Excess Interest Amount: With respect to each
Distribution
Date, the amount, if any, by which the Group 7 Interest
Remittance Amount for
such Distribution Date exceeds the aggregate amount distributed
on such
Distribution Date to the Group 7 Certificates pursuant to
paragraphs (i) through
(v) under Section 5.03(a).
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23(a).
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal and/or interest on
such Mortgage Loan
which, unless otherwise specified herein, shall give effect to
any related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument
creating a
first lien on a Mortgaged Property securing a Mortgage Note or
creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on the principal balance
of such Mortgage
Loan, as adjusted from time to time in accordance with the
provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate
Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate
for such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b)
from and after
such Rate Adjustment Date, the sum of the applicable Index, as
of the Rate
Adjustment Date applicable to such Due Date, and the Gross
Margin, rounded as
set forth in such Mortgage Note, subject to the Periodic Cap and
the Rate
Ceiling applicable to such Mortgage Loan at any time during the
life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated October 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-1, Exhibit D-2, Exhibit D-3, Exhibit D-4, Exhibit D-5,
Exhibit D-6 and
Exhibit D-7 setting forth the following information with respect
to each
Mortgage Loan: (i) the Mortgage Loan identifying number; (ii) a
code indicating
whether the Mortgaged Property is owner-occupied; (iii) the
property type for
each Mortgaged Property; (iv) the original months to maturity or
the remaining
months to maturity from the Cut-off Date; (v) the Loan-to-Value
Ratio at
origination; (vi) the Mortgage Interest Rate as of the Cut-off
Date; (vii) the
date on which the first Monthly Payment was due on the Mortgage
Loan, and, if
such date is not the Due Date currently in effect, such Due
Date; (viii) the
stated maturity date; (ix) the amount of the Monthly Payment as
of the Cut-off
Date; (x) the paid-through date; (xi) the original principal
amount of the
Mortgage Loan; (xii) the principal balance of the Mortgage Loan
as of the close
of business on the Cut-off Date, after application of payments
of principal due
on or before the Cut-off Date, whether or not collected, and
after deduction of
any payments collected of scheduled principal due after the
Cut-off Date; (xiii)
a code indicating the purpose of the Mortgage Loan; (xiv) a code
indicating the
documentation style; (xv) the Appraised Value; (xvi) the first
Rate Adjustment
Date; (xvii) the Rate Ceiling; (xviii) the Periodic Cap; (xix)
the Payment Cap,
if any; (xx) the Gross Margin; (xxi) the Index; (xxii) whether
such Mortgage
Loan is subject to Negative Amortization; (xxiii) the closing
date of such
Mortgage Loan; and (xxiv) whether such Mortgage Loan is subject
to a prepayment
penalty. With respect to the Mortgage Loans in each Loan Group
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 residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
National City Servicing Agreement: The Master Seller's
Warranties
and Servicing Agreement, dated as of September 1, 2003, by and
between BANA (as
successor in interest to Banc of America Mortgage Capital
Corporation), and
National City Mortgage Co. (as amended by (i) that certain
Amendment No. 1,
dated as of July 1, 2004, by and among Banc of America Mortgage
Capital
Corporation, National City Mortgage Co. and BANA, (ii) that
certain Master
Assignment, Assumption and Recognition Agreement, dated as of
July 1, 2004, by
and among Banc of America Mortgage Capital Corporation, National
City Mortgage
Co., BANA and Wachovia Bank, National Association and (iii) that
certain
Amendment No. 2, dated as of October 1, 2004, by and between
National City
Mortgage Co. and BANA).
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the
first day of
the month preceding the month of the related Distribution Date
reduced by (i)
the Servicing Fee Rate, (ii) the Securities Administrator Fee
Rate and (iii)
with respect to any Mortgage Loan covered by an LPMI Policy, the
per annum
premium rate.
Net Negative Amortization: As to any Distribution Date and
Loan
Group 6, the excess, if any, of the aggregate Deferred Interest
on the Group 6
Mortgage Loans with respect to the Due Date in the month of such
Distribution
Date over the aggregate amount of Principal Prepayments on the
Group 6 Mortgage
Loans received from mortgagors during the calendar month
preceding the month of
such Distribution Date.
Net WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the
Mortgage Loans in
such Loan Group (based on Stated Principal Balances of the
Mortgage Loans in
such Loan Group on the Due Date in the month preceding the month
of such
Distribution Date).
Non-Supported Interest Shortfalls: As to any Distribution Date
and
(i) the CB Crossed Loan Groups, the amount, if any, by which the
aggregate of
Prepayment Interest Shortfalls for the CB Crossed Loan Groups
exceeds the
aggregate Compensating Interest received from the Servicers for
the Mortgage
Loans in the CB Crossed Loan Groups for such Distribution Date,
(ii) the DB
Crossed Loan Groups, the amount, if any, by which the aggregate
of Prepayment
Interest Shortfalls for the DB Crossed Loan Groups exceeds the
aggregate
Compensating Interest received from the Servicers for the
Mortgage Loans in the
DB Crossed Loan Groups for such Distribution Date and (iii) Loan
Group 6, the
amount, if any, by which the aggregate of Prepayment Interest
Shortfalls for
Loan Group 6 exceeds the aggregate Compensating Interest
received from the
Servicers for the Group 6 Mortgage Loans 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.
Notional Amount: With respect to: (i) the Class 1-X-1
Certificates
and any date of determination, the Class 1-X-1 Notional Amount,
(ii) the Class
1-X-2 Certificates and any date of determination, the Class
1-X-2 Notional
Amount, (iii) the Class 3-X-1 Certificates and any date of
determination, the
Class 3-X-1 Notional Amount, (iv) the Class 3-X-2 Certificates
and any date of
determination, the Class 3-X-2 Notional Amount, (v) the Class
4-X-1 Certificates
and any date of determination, the Class 4-X-1 Notional Amount,
(vi) the Class
4-X-2 Certificates and any date of determination, the Class
4-X-2 Notional
Amount and (vii) the Class 6-X-1 Certificates and any date of
determination, the
Class 6-X-1 Notional Amount.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and the Class
CB-1,
Class CB-2, Class CB-3, Class DB-1, Class DB-2, Class DB-3,
Class 6-B-1, Class
6-B-2, Class 6-B-3, Class 7-M-1, Class 7-M-2 and Class 7-M-3
Certificates.
Offered Group 7 Certificates: The Class 7-A-1, Class 7-M-1,
Class
7-M-2 and Class 7-M-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.
One-Month LIBOR: With respect to the initial Interest
Accrual
Period, 1.96% per annum. With respect to each Interest Accrual
Period (other
than the initial Interest Accrual Period), the rate determined
by the Securities
Administrator on the related LIBOR Determination Date on the
basis of the
offered rate for one-month United States dollar deposits, as
such rate appears
on the Telerate Page 3750, as of 11:00 a.m. (London time) on
such LIBOR
Determination Date. If no such quotations are available on a
LIBOR Determination
Date, One-Month LIBOR for the related Interest Accrual Period
will be the higher
of (i) One-Month LIBOR for the previous LIBOR Determination Date
(or, in the
case of the first LIBOR Determination Date for which the
Securities
Administrator is required to determine One-Month LIBOR, 1.96%
per annum) or (ii)
a per annum rate which the Securities Administrator determines
to be either (a)
the arithmetic mean (rounding such arithmetic mean upwards if
necessary to the
nearest whole multiple of 1/16%) of the one-month United States
dollar lending
rate that New York City banks selected by the Securities
Administrator are
quoting on the relevant LIBOR Determination Date to the
principal London offices
of at least two leading banks in the London interbank market or
(b) in the event
that the Securities Administrator can determine no such
arithmetic mean, the
lowest one-month United States dollar lending rate that the New
York City banks
selected by the Securities Administrator are quoting on such
LIBOR Determination
Date to leading European banks.
One-Year CMT Index: A rate per annum that is defined to be
the
weekly average yield on United States Treasury Securities
adjusted to a constant
maturity of one year, as made available by the Federal Reserve
Board, published
in Federal Reserve Statistical Release H.15 (519) and most
recently available as
of the date 45 days before the applicable Rate Adjustment
Date.
One-Year LIBOR Index: A rate per annum that is defined to be
the
average of interbank offered rates for one-year U.S.
dollar-denominated deposits
in the London market, as published in The Wall Street Journal
and most recently
available either (i) as of the first Business Day in the month
preceding the
month of the applicable Rate Adjustment Date or (ii) up to the
date 45 days
before the applicable Rate Adjustment Date.
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 five separate REMICs or compliance with the REMIC
Provisions must be
an opinion of Independent counsel.
Original Class CB Certificate Balance: $9,075,341.00.
Original Class DB Certificate Balance: $25,429.888.00.
Original Class 6-B Certificate Balance: $7,157,880.00.
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 CB-1 2.25%
Class CB-2 1.40%
Class CB-3 1.00%
Class CB-4 0.55%
Class CB-5 0.20%
Class CB-6 0.00%
Class DB-1 3.10%
Class DB-2 2.00%
Class DB-3 1.40%
Class DB-4 0.80%
Class DB-5 0.30%
Class DB-6 0.00%
Class 6-B-1 4.85%
Class 6-B-2 3.15%
Class 6-B-3 2.20%
Class 6-B-4 1.00%
Class 6-B-5 0.40%
Class 6-B-6 0.00%
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
or Section 3.16(g).
Overcollateralization Amount: As of any Distribution Date,
the
excess, if any, of (x) the Pool Stated Principal Balance of Loan
Group 7 as of
the Due Date in the month of such Distribution Date over (y) the
aggregate Class
Certificate Balance of all Classes of Offered Group 7
Certificates (after taking
into account all distributions of principal on such Distribution
Date and the
increase of any Class Certificate Balance of a Class of Offered
Group 7
Certificates as a result of Recoveries).
Overcollateralization Deficiency: As of any Distribution Date,
the
excess, if any, of (x) the Targeted Overcollateralization Amount
for such
Distribution Date over (y) the Overcollateralization Amount for
such
Distribution Date, calculated for this purpose after taking into
account the
reduction on such Distribution Date of the Class Certificate
Balances of all
Classes of Offered Group 7 Certificates resulting from the
distribution of the
Group 7 Principal Distribution Amount (but not the Extra
Principal Distribution
Amount) on such Distribution Date, but prior to taking into
account any Applied
Realized Loss Amounts on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date on or after the Stepdown Date on which a
Trigger Event is not
in effect, the lesser of (x) the Group 7 Principal Remittance
Amount for such
Distribution Date and (y) the excess, if any, of (i) the
Overcollateralization
Amount for such Distribution Date, assuming that 100% of the
Group 7 Principal
Remittance Amount is applied as a principal payment on the
Offered Group 7
Certificates on such Distribution Date, over (ii) the
Targeted
Overcollateralization Amount for such Distribution Date. With
respect to any
Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Release Amount will be zero.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the
Preliminary
Statement.
With respect to the Class 7-CE Certificates and any
Distribution
Date, a per annum rate equal to the percentage equivalent of a
fraction, the
numerator of which is the sum of the amounts calculated pursuant
to clauses (A)
through (F) below, and the denominator of which is the aggregate
of the
Uncertificated Principal Balances of Regular Interest LT1AA,
Regular Interest
LT1A1, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1M3,
Regular Interest LT1ZZ. For purposes of calculating the
Pass-Through Rate for
the Class 7-CE Certificates, the numerator is equal to the sum
of the following
components:
(A) the Group 7 Lower-Tier Rate minus the Marker Rate, applied
to an
amount equal to the Uncertificated Principal Balance of Regular
Interest LT1AA;
(B) the Group 7 Lower-Tier Rate minus the Marker Rate, applied
to an
amount equal to the Uncertificated Principal Balance of Regular
Interest LT1A1;
(C) the Group 7 Lower-Tier Rate minus the Marker Rate, applied
to an
amount equal to the Uncertificated Principal Balance of Regular
Interest LT1M1;
(D) Group 7 Lower-Tier Rate minus the Marker Rate, applied to
an
amount equal to the Uncertificated Principal Balance of Regular
Interest LT1M2;
(E) the Group 7 Lower-Tier Rate minus the Marker Rate, applied
to an
amount equal to the Uncertificated Principal Balance of Regular
Interest LT1M3;
(F) the Group 7 Lower-Tier Rate minus the Marker Rate, applied
to an
amount equal to the Uncertificated Principal Balance of Regular
Interest LT1ZZ.
Paying Agent: As defined in Section 9.13.
Payment Cap: For each Group 6 Mortgage Loan, the applicable
limit on
adjustment of the Monthly Payment, subject to certain
exceptions, for each Rate
Adjustment Date specified in the applicable Mortgage Note and
designated as such
in the Mortgage Loan Schedule.
Percentage Interest: As to any Certificate (other than the
Class
7-CE, Class 7-R and Class 7-LR Certificates), the percentage
obtained by
dividing the initial Certificate Balance of such Certificate (or
the initial
notional amount for the Interest-Only Certificates) by the
Initial Class
Certificate Balance or Initial Notional Amount, as applicable,
of the Class of
which such Certificate is a part. With respect to the Class
7-CE, Class 7-R and
Class 7-LR Certificates, the portion of the Class evidenced
thereby, expressed
as a percentage, as stated on the face of such Certificate;
provided, however,
that the sum of all such percentages for each such Class totals
100%. With
respect to the Class 7-R and Class 7-LR Certificates, 100%.
Periodic Advance: With respect to each Servicer, shall have
the
meaning given to the term "Monthly Advance" in the applicable
Servicing
Agreement.
Periodic Cap: For each Mortgage Loan, the applicable limit
on
adjustment of the Mortgage Interest Rate for each Rate
Adjustment Date specified
in the applicable Mortgage Note and designated as such in the
Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United States, FHLMC, FNMA or any agency or instrumentality of
the United
States when such obligations are backed by the full faith and
credit of
the United States; provided that such obligations of FHLMC or
FNMA shall
be limited to senior debt obligations and mortgage
participation
certificates other than investments in mortgage-backed or
mortgage
participation securities with yields evidencing extreme
sensitivity to the
rate of principal payments on the underlying mortgages, which
shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing not more than one month from the date of acquisition
thereof with
a corporation incorporated under the laws of the United States
or any
state thereof rated not lower than "F-1" by Fitch , "P-1" by
Moody's and
"A-1" by S&P;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits and bankers' acceptances (which shall each have an
original
maturity of not more than 90 days and, in the case of
bankers'
acceptances, shall in no event have an original maturity of more
than 365
days or a remaining maturity of more than 30 days) denominated
in United
States dollars of any U.S. depository institution or trust
company
incorporated under the laws of the United States or any state
thereof,
rated not lower than "F-1" by Fitch, "P-1" by Moody's and "A-1"
by S&P;
(iv) commercial paper (having original maturities of not more
than
365 days) of any corporation incorporated under the laws of the
United
States or any state thereof which is rated not lower than "F-1"
by Fitch,
"P-1" by Moody's 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), "Aaa" by
Moody's and
"AAAm G" by S&P or otherwise approved in writing by each
Rating Agency;
and
(vi) other obligations or securities that are acceptable to
each
Rating Agency and, as evidenced by an Opinion of Counsel
obtained by the
Master Servicer and addressed to the Depositor and the
Securities
Administrator, will not affect the qualification of the Trust
Estate as
five separate REMICs;
provided, however, that no instrument shall be a Permitted
Investment if it
represents either (a) the right to receive only interest
payments with respect
to the underlying debt instrument or (b) the right to receive
both principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of
such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision thereof, or any agency
or
instrumentality of any of the foregoing, (ii) a foreign
government,
international organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization which is exempt from tax
imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the
Code on unrelated
business taxable income) (except certain farmers' cooperatives
described in Code
Section 521), (iv) rural electric and telephone cooperatives
described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the
income on a
Residual Certificate is allocable to a foreign permanent
establishment or fixed
base, within the meaning of an applicable income tax treaty, of
such Person or
any other U.S. Person, and (vi) any other Person so designated
by the 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 3-A-R, Class 3-A-MR, Class
3-A-LR,
Class 7-CE, Class 7-R, Class 7-LR, Class CB-4, Class CB-5, Class
CB-6, Class
DB-4, Class DB-5, Class DB-6, Class 6-B-4, Class 6-B-5 and Class
6-B-6
Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and
Shifting
Interest Loan Group, the excess of (a) the sum of (i) the
aggregate of (A) the
interest portion of any Monthly Payment on a Mortgage Loan in
such Loan Group
(net of the Servicing Fee, the Securities Administrator Fee, the
LPMI Policy
premium rate, if any, and, with respect to Loan Group 6, after
taking into
account reductions in respect of Deferred Interest on the Group
6 Mortgage
Loans) and the principal portion of any Monthly Payment on a
Mortgage Loan in
such Loan Group due on the Due Date in the calendar month in
which such
Distribution Date occurs and which is received prior to the
related
Determination Date and (B) all Periodic Advances made by a
Servicer (or the
Master Servicer or the Trustee, as applicable) in respect of
such Loan Group and
payments of Compensating Interest allocable to such Loan Group
in respect of
such Distribution Date deposited to the Master Servicer
Custodial Account
pursuant to Section 3.09(d)(vi); (ii) all Liquidation Proceeds
received on the
Mortgage Loans in such Loan Group 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 in
such Loan Group during the calendar month preceding the month of
such
Distribution Date and deposited to the Master Servicer Custodial
Account
pursuant to Section 3.09(d)(i); (iv) in connection with
Defective Mortgage Loans
in such Loan Group, the aggregate of the Repurchase Prices and
Substitution
Adjustment Amounts received during the calendar month preceding
the month of
such Distribution Date and deposited to the Master Servicer
Custodial Account
pursuant to Section 3.09(d)(vii); (v) any other amounts in the
Master Servicer
Custodial Account deposited therein pursuant to Sections
3.09(d)(iv), (v) and
(ix) in respect of such Distribution Date and such Loan Group;
(vi) any
Reimbursement Amount required to be included pursuant to Section
5.02(a) and
(vii) any Recovery in respect of such Distribution Date; over
(b) any amounts
permitted to be withdrawn from the Master Servicer Custodial
Account pursuant to
clauses (i) through (viii), inclusive, of Section 3.12(a) in
respect of such
Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group, the aggregate Stated Principal Balances of all Mortgage
Loans in such
Loan Group 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.
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 Amount: As to any Distribution Date and Loan Group
(other
than Loan Group 7), the sum of (i) the sum of (a) the principal
portion of each
Monthly Payment due on each Mortgage Loan in such Loan Group on
the related Due
Date, (b) the Stated Principal Balance, as of the date of
repurchase, of each
Mortgage Loan in such Loan Group that was repurchased by the
Depositor, the
Seller or the related Originator as of such Distribution Date,
(c) any
Substitution Adjustment Amount in connection with a Defective
Mortgage Loan in
such Loan Group received with respect to such Distribution Date,
(d) any
Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans
received by a
Servicer during the calendar month preceding the month of such
Distribution
Date, (e) with respect to each Mortgage Loan in such Loan Group
that became a
Liquidated Mortgage Loan during the calendar month preceding the
month of such
Distribution Date, the amount of Liquidation Proceeds (excluding
Excess
Proceeds) allocable to principal received by a Servicer with
respect to such
Mortgage Loan during the calendar month preceding the month of
such Distribution
Date and (f) all Principal Prepayments on the Mortgage Loans in
such Loan Group
received by a Servicer during the calendar month preceding the
month of such
Distribution Date reduced, in the case of Loan Group 6 (but not
below zero) by
the aggregate amount of Deferred Interest; and (ii) any Recovery
related to such
Loan Group for such Distribution Date.
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.
Private Certificates: The Class CB-4, Class CB-5, Class CB-6,
Class
DB-4, Class DB-5, Class DB-6, Class 6-B-4, Class 6-B-5, Class
6-B-6, Class 7-CE,
Class 7-R and Class 7-LR Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Class
CB Certificates, Class DB Certificates or Class 6-B Certificates
that is not a
Restricted Class, the portion of the Subordinate Principal
Distribution Amount
or Amounts allocable to such Class, equal to the product of the
Subordinate
Principal Distribution Amount or Amounts for such Distribution
Date and a
fraction, the numerator of which is the related Class
Certificate Balance
thereof and the denominator of which is the aggregate Class
Certificate Balance
of the Class CB Certificates, Class DB Certificates or Class 6-B
Certificates,
as applicable, that are not Restricted Classes. The Pro Rata
Share of a
Restricted Class shall be 0%. The Pro Rata Share of a Class of
Class CB
Certificates, Class DB Certificates or Class 6-B Certificates
may be computed
for each of clause (i) and clause (ii) of the definition of
"Subordinate
Principal Distribution Amount" in the event the Restricted
Classes differ with
respect to each clause.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date
on
which date an adjustment to the Mortgage Interest Rate of such
Mortgage Loan
becomes effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note and indicated on the Mortgage
Loan Schedule.
Rating Agency: Each of Fitch, Moody's and S&P. If either
such
organization or a successor is no longer in existence, "Rating
Agency" shall be
such nationally recognized statistical rating organization, or
other comparable
Person, as is designated by the Depositor, notice of which
designation shall be
given to the Trustee, the Master Servicer and the Securities
Administrator.
References herein to a given rating or rating category of a
Rating Agency shall
mean such rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation, equal to (i) the
unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due
Date as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent
applied as
recoveries of interest at the Net Mortgage Interest Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan
that has become the
subject of a Deficient Valuation, if the principal amount due
under the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become
the subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Monthly Payment has been
reduced.
Realized Loss Amortization Amount: Any of the Class 7-M-1
Realized
Loss Amortization Amount, the Class 7-M-2 Realized Loss
Amortization Amount or
the Class 7-M-3 Realized Loss Amortization Amount.
Record Date: With respect to all of the Certificates (other than
the
Class 7-A-1, Class 7-M-1, Class 7-M-2 and Class 7-M-3
Certificates), the last
Business Day of the month immediately preceding the month in
which the related
Distribution Date occurs and with respect to the Class 7-A-1,
Class 7-M-1, Class
7-M-2 and Class 7-M-3 Certificates, the Business Day immediately
preceding such
Distribution Date; provided, however, that if any such Class
7-A-1, Class 7-M-1,
Class 7-M-2 or Class 7-M-3 Certificate becomes a Definitive
Certificate, the
Record Date for such Certificate shall be the last Business Day
of the month
immediately preceding the month in which the related
Distribution Date occurs.
Recovery: As to any Distribution Date and Loan Group, the sum of
all
amounts received during the calendar month preceding the month
of such
Distribution Date on each Mortgage Loan in such Loan Group
subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage
Loan.
Regular Certificates: As defined in the Preliminary
Statement
hereto.
Regular Interest LT1AA: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1AA shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the definition of Uncertificated Group 7
Lower-Tier
Interest.
Regular Interest LT1A1: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1A1 shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the definition of Uncertificated Group 7
Lower-Tier
Interest.
Regular Interest LT1M1: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1M1 shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the definition of Uncertificated Group 7
Lower-Tier
Interest.
Regular Interest LT1M2: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1M2 shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the definition of Uncertificated Group 7
Lower-Tier
Interest.
Regular Interest LT1M3: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1M3 shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the definition of Uncertificated Group 7
Lower-Tier
Interest.
Regular Interest LT1XX: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1XX shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the definition of Uncertificated Group 7
Lower-Tier
Interest.
Regular Interest LT1ZZ: One of the separate non-certificated
beneficial ownership interests in the Group 7 Lower-Tier REMIC
issued hereunder
and designated as a Regular Interest in the Group 7 Lower-Tier
REMIC. Regular
Interest LT1ZZ shall accrue interest at the Group 7 Lower-Tier
Rate and shall be
entitled to distributions of principal, subject to the terms and
conditions
hereof, in an aggregate amount equal to its initial
Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1, for Loan Group 2,
Group 2,
for Loan Group 3, Group 3, for Loan Group 4, Group 4, for Loan
Group 5, Group 5,
for Loan Group 6, Group 6 and the Class 6-B Certificates, for
Loan Group 7,
Group 7, for the CB Crossed Loan Groups, Group 1 and Group 2 and
for the DB
Crossed Loan Groups, Group 3, Group 4 and Group 5.
Related Loan Group: For Group 1, Loan Group 1, for Group 2,
Loan
Group 2, for Group 3, Loan Group 3, for Group 4, Loan Group 4,
for Group 5, Loan
Group 5, for Group 6, Loan Group 6, for Group 7, Loan Group 7,
for the Class CB
Certificates, Loan Group 1 and Loan Group 2, and for the Class
DB Certificates,
Loan Group 3, Loan Group 4 and Loan Group 5.
Relief Act: The Servicemembers Civil Relief Act, as it may
be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a reduction in the
amount of interest
collectible thereon for the most recently ended calendar month
as a result of
the application of the Relief Act or comparable state
legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan
for the most
recently ended calendar month is less than (ii) interest accrued
pursuant to the
terms of the Mortgage Note on the same principal amount and for
the same period
as the interest collectible on such Mortgage Loan for the most
recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within
the
meaning of Section 860D of the Code. "Each REMIC" or "any REMIC"
means each of
the Lower-Tier REMIC, the Middle-Tier REMIC, the Upper-Tier
REMIC, the Group 7
Lower-Tier REMIC and the Group 7 Upper-Tier REMIC.
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, in
such form as shall
be mutually agreed upon by related Servicer and the Trustee or
the Custodian on
behalf of the Trustee, which, in the case of the Custodian, may
be in electronic
form.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be maintained from time to
time under the
applicable Servicing Agreement in respect of such Mortgage
Loan.
Reserve Account: The trust account created and maintained by
the
Securities Administrator pursuant to Section 3.09(h) which shall
be entitled the
"Reserve Account, Wells Fargo Bank, N.A., as Securities
Administrator, in trust
for registered Holders of the Offered Group 7 Certificates of
the Banc of
America Funding Trust, Series 2004-B" and which must be an
Eligible Account.
Amounts on deposit in the Reserve Account shall not be invested.
The Reserve
Account shall not be an asset of any REMIC formed under this
Agreement.
Residual Certificates: The Class 3-A-R, Class 3-A-MR, Class
3-A-LR,
Class 7-R and Class 7-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 and
Loan
Group, an amount equal to one-twelfth of the Securities
Administrator Fee Rate
multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans in
the Related Loan Group 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, 0.0060% 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 A Certificates and the Class
X
Certificates.
Senior Credit Support Depletion Date: As to each of the CB
Crossed
Groups, the date on which the aggregate Class Certificate
Balance of the Class
CB Certificates is reduced to zero, as to each of the DB Crossed
Groups, the
date on which the aggregate Class Certificate Balance of the
Class DB
Certificates is reduced to zero, and as to Loan Group 6, the
date on which the
aggregate Class Certificate Balance of the Class 6-B
Certificates is reduced to
zero.
Senior Enhancement Percentage: For any Distribution Date,
the
percentage obtained by dividing (x) the sum of (i) the aggregate
Class
Certificate Balance of the Class M Certificates before taking
into account the
distribution of the Group 7 Principal Distribution Amount on
such Distribution
Date and (ii) the Overcollateralization Amount as of the prior
Distribution Date
by (y) the aggregate Stated Principal Balance of Loan Group 7 as
of the due date
in the month of such Distribution Date.
Senior Specified Enhancement Percentage: On any date of
determination thereof, 15.5%.
Senior Percentage: With respect to any Distribution Date and
each
Shifting Interest Loan Group, the percentage, carried to at
least six places
rounded up, obtained by dividing the aggregate Class Certificate
Balance of the
Senior Certificates of the Related Group immediately prior to
such Distribution
Date by the Pool Stated Principal Balance of such Loan Group for
such
Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
each
Shifting Interest Loan Group during the seven years beginning on
the first
Distribution Date, 100%. The Senior Prepayment Percentage for
any Distribution
Date and each Shifting Interest Loan Group occurring on or after
the seventh
year 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 for such Shifting Interest Loan Group plus 70%
of the
Subordinate Percentage for such Shifting Interest Loan Group for
such
Distribution Date; for any Distribution Date in the second year
thereafter, the
Senior Percentage for such Shifting Interest Loan Group plus 60%
of the
Subordinate Percentage for such Shifting Interest Loan Group for
such
Distribution Date; for any Distribution Date in the third year
thereafter, the
Senior Percentage for such Shifting Interest Loan Group plus 40%
of the
Subordinate Percentage for such Shifting Interest Loan Group for
such
Distribution Date; for any Distribution Date in the fourth year
thereafter, the
Senior Percentage for such Shifting Interest Loan Group plus 20%
of the
Subordinate Percentage for such Shifting Interest Loan Group for
such
Distribution Date; and for any Distribution Date in the fifth or
later years
thereafter, the Senior Percentage for such Shifting Interest
Loan Group for such
Distribution Date, (unless on any of the foregoing Distribution
Dates (i) (a)
the CB Crossed Loan Group Senior Percentage exceeds the initial
CB Crossed Loan
Group Senior Percentage, in which case the Senior Prepayment
Percentage for the
CB Crossed Loan Groups for such Distribution Date will once
again equal 100%,
(b) the DB Crossed Loan Group Senior Percentage exceeds the
initial DB Crossed
Loan Group Senior Percentage, in which case the Senior
Prepayment Percentage for
the DB Crossed Loan Groups for such Distribution Date will once
again equal 100%
and (c) the Senior Percentage for Loan Group 6 exceeds the
initial Senior
Percentage for Loan Group 6, in which case the Senior Prepayment
Percentage for
Loan Group 6 for such Distribution Date will once again equal
100%, (ii) (a) on
any Distribution Date before the Distribution Date occurring in
November 2007,
the CB Crossed Loan Group Subordinate Percentage for such
Distribution Date is
greater than or equal to twice the initial CB Crossed Loan Group
Subordinate
Percentage, in which case the Senior Prepayment Percentage each
CB Crossed Loan
Group for such Distribution Date will equal the Senior
Percentage for such CB
Crossed Loan Group plus 50% of the Subordinate Percentage for
such CB Crossed
Loan Group, (b) on any Distribution Date before the Distribution
Date occurring
in November 2007, the DB Crossed Loan Group Subordinate
Percentage for such
Distribution Date is greater than or equal to twice the initial
DB Crossed Loan
Group Subordinate Percentage, in which case the Senior
Prepayment Percentage for
each DB Crossed Loan Group for such Distribution Date will equal
the Senior
Percentage for such DB Crossed Loan Group plus 50% of the
Subordinate Percentage
for such DB Crossed Loan Group, and (c) on any Distribution Date
before the
Distribution Date occurring in November 2007, the Subordinate
Percentage for
Loan Group 6 for such Distribution Date is greater than or equal
to twice the
initial Subordinate Percentage for Loan Group 6, in which case
the Senior
Prepayment Percentage for Loan Group 6 for such Distribution
Date will equal the
Senior Percentage for Loan Group 6 plus 50% of the Subordinate
Percentage for
Loan Group 6 or (iii) (a) on any Distribution Date occurring on
or after the
Distribution Date in November 2007, the CB Crossed Loan Group
Subordinate
Percentage for such Distribution Date is greater than or equal
to twice the
initial CB Crossed Loan Group Subordinate Percentage, in which
case the Senior
Prepayment Percentage for each CB Crossed Loan Group for such
Distribution Date
will equal the Senior Percentage for such CB Crossed Loan Group,
(b) on any
Distribution Date occurring on or after the Distribution Date in
November 2007,
the DB Crossed Loan Group Subordinate Percentage for such
Distribution Date is
greater than or equal to twice the initial DB Crossed Loan Group
Subordinate
Percentage, in which case the Senior Prepayment Percentage for
each DB Crossed
Loan Group for such Distribution Date will equal the Senior
Percentage for such
DB Crossed Loan Group and (c) on any Distribution Date occurring
on or after the
Distribution Date in November 2007, the Subordinate Percentage
for Loan Group 6
for such Distribution Date is greater than or equal to twice the
initial
Subordinate Percentage for Loan Group 6, in which case the
Senior Prepayment
Percentage for Loan Group 6 for such Distribution Date will
equal the Senior
Percentage for Loan Group 6. Notwithstanding the foregoing, no
decrease in the
share of the applicable Subordinate Percentage (for calculating
the applicable
Senior Prepayment Percentage for any Loan Group) will occur and
the Senior
Prepayment Percentage for all Loan Groups will be calculated
without regard to
clause (ii) or (iii) in the preceding sentence unless both of
the Senior Step
Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group (other than Loan Group 7), the sum of (i) the
Senior Percentage
for such Loan Group of the amounts described in clauses (i)(a)
through (d) of
the definition of "Principal Amount" for such Distribution Date
and Loan Group
and (ii) the Senior Prepayment Percentage for such Loan Group of
the amounts
described in clauses (i)(e) and (f) and the amount described in
clause (ii) of
the definition of "Principal Amount" for such Distribution Date
and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and a
CB
Crossed Loan Group as to which any decrease in the Senior
Prepayment Percentage
for any CB Crossed Loan Group applies, (i) the outstanding
principal balance of
all Mortgage Loans in such Loan Groups (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 Class CB
Certificates, is not
equal to or greater than 50% or (ii) cumulative Realized Losses
with respect to
the Mortgage Loans in such Loan Groups as of the applicable
Distribution Date do
not exceed the percentages of the Original Class CB Certificate
Balance set
forth below:
Percentage of
Original Class CB
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
November 2004 through October 2007 20%
November 2007 through October 2012 30%
November 2012 through October 2013 35%
November 2013 through October 2014 40%
November 2014 through October 2015 45%
November 2015 and thereafter 50%
As of any Distribution Date and a DB Crossed Loan Group as to
which
any decrease in the Senior Prepayment Percentage for any DB
Crossed Loan Group
applies, (i) the outstanding principal balance of all Mortgage
Loans in such
Loan Groups (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 Class DB Certificates, is not equal to or greater
than 50% or
(ii) cumulative Realized Losses with respect to the Mortgage
Loans in such Loan
Groups as of the applicable Distribution Date do not exceed the
percentages of
the Original Class DB Certificate Balance set forth below:
Percentage of
Original Class DB
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
November 2004 through October 2007 20%
November 2007 through October 2012 30%
November 2012 through October 2013 35%
November 2013 through October 2014 40%
November 2014 through October 2015 45%
November 2015 and thereafter 50%
As of any Distribution Date and Loan Group 6 as to which any
decrease in the Senior Prepayment Percentage for Loan Group 6
applies, (i) the
outstanding principal balance of all Mortgage Loans in such Loan
Group
(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 Class 6-B Certificates, is not equal to or greater than 50%
or (ii)
cumulative Realized Losses with respect to the Mortgage Loans in
such Loan Group
as of the applicable Distribution Date do not exceed the
percentages of the
Original Class 6-B Certificate Balance set forth below:
Percentage of
Original Class 6-B
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
November 2004 through October 2007 20%
November 2007 through October 2012 30%
November 2012 through October 2013 35%
November 2013 through October 2014 40%
November 2014 through October 2015 45%
November 2015 and thereafter 50%
Servicer: Any of BANA, Countrywide Home Loans Servicing LP,
National
City Mortgage Co., GreenPoint Mortgage Funding, Inc. and Wells
Fargo Bank, each
in their capacity as servicer of the Mortgage Loans, or any
successor servicer
appointed as herein provided.
Servicer Custodial Accounts: The separate accounts created
and
maintained by each of the Servicers pursuant to the applicable
Servicing
Agreement.
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,
Countrywide Servicing Agreement, GreenPoint Servicing Agreement,
National City
Servicing Agreement and the Wells Fargo 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).
Shifting Interest Certificates: Any of the Group 1
Certificates,
Group 2 Certificates, Group 3 Certificates, Group 4
Certificates, Group 5
Certificates and Group 6 Certificates.
Shifting Interest Group: Any of Group 1, Group 2, Group 3, Group
4,
Group 5 and Group 6.
Shifting Interest Loan Group: Any of Loan Group 1, Loan Group
2,
Loan Group 3, Loan Group 4, Loan Group 5 and Loan Group 6.
Similar Law: As defined in Section 6.02(e).
Six-Month LIBOR Index: A rate per annum that is defined to be
the
arithmetic mean of the interbank offered rates for six month
U.S.
dollar-denominated deposits in the London market, as published
in The Wall
Street Journal and most recently available either (i) as of the
first Business
Day in the month preceding the month of the applicable Rate
Adjustment Date or
(ii) up to 45 days before the applicable Rate Adjustment
Date.
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, plus any
Deferred Interest.
Stepdown Date: The earlier to occur of (i) the Distribution Date
on
which the Class Certificate Balance of the Class 7-A-1
Certificates is reduced
to zero and (ii) the later to occur of (x) the Distribution Date
in November
2007 and (y) the Distribution Date on which the Senior
Enhancement Percentage is
greater than or equal to the Senior Specified Enhancement
Percentage.
Subordinate Certificates: The Class CB Certificates, Class
DB
Certificates, Class 6-B Certificates, Class M Certificates,
Class 7-CE
Certificates, Class 7-R Certificates and Class 7-LR
Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such Loan Group for such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior Prepayment Percentage for such
Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to
any
Distribution Date and Shifting Interest Loan Group, an amount
equal to the sum
of (i) the Subordinate Percentage for such Loan Group of the
amounts described
in clauses (i)(a) through (d) of the definition of "Principal
Amount" for such
Distribution Date and Loan Group and (ii) the Subordinate
Prepayment Percentage
of the amounts described in clauses (i)(e) and (f) and the
amount described in
clause (ii) of the definition of "Principal Amount" for such
Distribution Date
and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such
substitution (i) have a
Stated Principal Balance, after deduction of the principal
portion of the
Monthly Payment due in the month of substitution, not in excess
of the Stated
Principal Balance of the Defective Mortgage Loan; (ii) have a
Net Mortgage
Interest Rate not less than and not more than 2% greater than
that of the
Defective Mortgage Loan; (iii) be of the same type as the
Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not higher than that of
the Defective
Mortgage Loan; (v) have a Gross Margin not less than that of the
Defective
Mortgage Loan; (vi) have a credit grade not lower in quality
than that of the
Defective Mortgage Loan; (vii) have the same Index as the
Defective Mortgage
Loan; (viii) have the same lien priority as the Defective
Mortgage Loan; (ix)
have a remaining term to maturity not greater than (and not more
than one year
less than) that of the Defective Mortgage Loan; and (x) comply
with each
Mortgage Loan representation and warranty set forth in the
applicable Servicing
Agreement, the Mortgage Loan Purchase Agreement and this
Agreement relating to
the Defective Mortgage Loan. More than one Substitute Mortgage
Loan may be
substituted for a Defective Mortgage Loan if such Substitute
Mortgage Loans meet
the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Targeted Overcollateralization Amount: As of any Distribution
Date,
0.55% of the Cut-off Date Pool Principal Balance of the Group 7
Mortgage Loans.
Tax Matters Person: Any person designated as "tax matters
person" in
accordance with Section 5.06 and the manner provided under
Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on
the
Moneyline Telerate Service (or such other page as may replace
the Telerate Page
3750 page on that service for the purpose of displaying London
interbank offered
rates of major banks).
Termination Date: As defined in Section 10.01 hereof.
Termination Price: As defined in Section 10.01 hereof.
Trigger Event: With respect to any Distribution Date, if (i)
the
three-month rolling average of 60+ Day Delinquent Loans equals
or exceeds 40% of
the Senior Enhancement Percentage or (ii) the aggregate amount
of Realized
Losses incurred on the Group 7 Mortgage Loans since the Cut-off
Date through the
Due Date in the month of such Distribution Date (reduced by the
aggregate amount
of Recoveries received since the Cut-off Date through the Due
Date in the month
of such Distribution Date on the Group 7 Mortgage Loans) divided
by the Cut-off
Date Pool Principal Balance for Loan Group 7 exceeds the
applicable percentages
set forth below with respect to such Distribution Date:
Distribution Date Occurring In Percentage
------------------------------ ----------
November 2007 through October 2008 0.85%
November 2008 through October 2009 1.30%
November 2009 through October 2010 1.65%
November 2010 and thereafter 1.70%
Treasury Bank Custodial Agreement: The Custodial Agreement,
dated
October 29, 2004, by and among the Depositor, Countrywide Home
Loans Servicing
LP, Countrywide Home Loans, Inc., the Trustee and the Custodian,
or any
successor custodial agreement entered into pursuant to Section
9.12.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the
Treasury.
Trust: The trust created by this Agreement, which shall be
named
"Banc of America Funding 2004-B Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to a portion of which five 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), (v) the Securities Administrator's rights under the
Yield Maintenance
Agreements and (vi) the Servicer Custodial Accounts, the Master
Servicer
Custodial Account, the Distribution Account and the Reserve
Account and such
assets that are deposited therein from time to time and any
investments thereof,
together with any and all income, proceeds and payments with
respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed
hereunder, such
successor, as trustee.
Uncertificated Accrued Interest: With respect to each
Uncertificated
Group 7 Lower-Tier Interest on each Distribution Date, an amount
equal to one
month's interest at the Group 7 Lower-Tier Rate on the
Uncertificated Principal
Balance of such Regular Interest. In each case, Uncertificated
Accrued Interest
will be reduced by any Prepayment Interest Shortfalls and Relief
Act Interest
Shortfalls (allocated to such Regular Interests based on their
respective
entitlements to interest irrespective of any Prepayment Interest
Shortfalls and
Relief Act Interest Shortfalls for such Distribution Date).
Uncertificated Group 7 Lower-Tier Interest: A regular interest
in
the Group 7 Lower-Tier REMIC which is held as an asset of the
Group 7 Upper-Tier
REMIC and is entitled to monthly distributions as provided in
Section 5.03
hereof. Any of the Regular Interest LT1AA, Regular Interest
LT1A1, Regular
Interest LT1M1, Regular Interest LT1M2, Regular Interest LT1M3,
Regular Interest
LT1XX and Regular Interest LT1ZZ are Uncertificated Group 7
Lower-Tier
Interests. The Uncertificated Group 7 Lower-Tier Interests shall
have the
following original Uncertificated Principal Balances as of the
Closing Date:
Designation Uncertificated Principal Balance
----------- --------------------------------
LT1AA $77,482,296.23
LT1A1 $729,360.00
LT1M1 $24,905.00
LT1M2 $18,185.00
LT1M3 $13,835.00
LT1XX $79,063,567.59
LT1ZZ $794,986.35
Uncertificated Lower-Tier Interest: A regular interest in
the
Lower-Tier REMIC which is held as an asset of the Middle-Tier
REMIC and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 2-L Interest,
Class 2-LS
Interest, Class 3-L Interest, Class 3-LS Interest, Class 4-L
Interest, Class
4-LS Interest, Class 5-L Interest, Class 5-LS Interest and Class
6-L Interest
are Uncertificated Lower-Tier Interests.
Uncertificated Middle-Tier Interest: A regular interest in
the
Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Any of
the Class 1-A-M1 Interest, Class 1-A-M2 Interest, Class 2-A-M1
Interest, Class
3-A-M1 Interest, Class 3-A-M2 Interest, Class 3-A-MUR Interest,
Class 4-A-M1
Interest, Class 4-A-M2 Interest, Class 5-A-M1 Interest, Class
6-A-M1 Interest,
Class CB-M1 Interest, Class CB-M2 Interest, Class CB-M3
Interest, Class CB-M4
Interest, Class CB-M5 Interest, Class CB-M6 Interest, Class
DB-M1 Interest,
Class DB-M2 Interest, Class DB-M3 Interest, Class DB-M4
Interest, Class DB-M5
Interest, Class DB-M6 Interest, Class 6-B-M1 Interest, Class
6-B-M2 Interest,
Class 6-B-M3 Interest, Class 6-B-M4 Interest, Class 6-B-M5
Interest and Class
6-B-M6 Interest are Uncertificated Middle-Tier Interests.
Uncertificated Principal Balance: The amount of any
Uncertificated
Group 7 Lower-Tier Interest outstanding as of any date of
determination. As of
the Closing Date, the Uncertificated Balance of each
Uncertificated Group 7
Lower-Tier Interest shall equal the amount set forth in the
definition of "Group
7 Lower-Tier Interest" hereto as its initial uncertificated
balance. On each
Distribution Date, the Uncertificated Principal Balance of each
Uncertificated
Group 7 Lower-Tier Regular Interest shall be reduced by all
distributions of
principal made on such Uncertificated Group 7 Lower-Tier Regular
Interest on
such Distribution Date pursuant to Section 5.03 and, if and to
the extent
necessary and appropriate, shall be further reduced on such
Distribution Date by
Realized Losses as provided in Section 5.03(e). The
Uncertificated Balance of
REMIC 1 Regular Interest LT1ZZ shall be increased by interest
deferrals as
provided in Section 5.11(b)(i). The Uncertificated Principal
Balance of each
Uncertificated Group 7 Lower-Tier Regular Interest shall never
be less than
zero.
Unpaid Realized Loss Amount: For the Class 7-M-1, Class 7-M-2
and
Class 7-M-3 Certificates and as to any Distribution Date, the
excess of (x) the
aggregate Applied Realized Loss Amounts allocated to such Class
for all prior
Distribution Dates over (y) the sum of (a) the cumulative amount
of any
Recoveries allocated to such Class and (b) the aggregate
Realized Loss
Amortization Amounts with respect to such Class for all prior
Distribution
Dates.
Unscheduled Principal Payments: As to any Distribution Date and
Loan
Group (other than Loan Group 7), the sum of (i) with respect to
each Mortgage
Loan in such Loan Group that became a Liquidated Mortgage Loan
during the
calendar month preceding the month of such Distribution Date,
the amount of
Liquidation Proceeds (excluding Excess Proceeds) allocable to
principal received
by a Servicer with respect to such Mortgage Loan during the
calendar month
preceding the month of such Distribution Date and (b) all
Principal Prepayments
on the Mortgage Loans in such Loan Group received by a Servicer
during the
calendar month preceding the month of such Distribution Date
reduced, in the
case of Loan Group 6 (but not below zero) by the aggregate
amount of Deferred
Interest.
Upper-Tier Certificate Sub-Account: The sub-account of the
Distribution 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 Middle-Tier
Interests and such
amounts as shall from time to time be deemed to be held in the
Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a
partnership, Treasury
Regulations are adopted that provide otherwise) created or
organized in or under
the laws of the United States, any state thereof or the District
of Columbia,
including an entity treated as a corporation or partnership for
federal income
tax purposes, an estate whose income is subject to United States
federal income
tax regardless of its source, or a trust if a court within the
United States is
able to exercise primary supervision over the administration of
such trust, and
one or more such U.S. Persons have the authority to control all
substantial
decisions of such trust (or, to the extent provided in
applicable Treasury
Regulations, certain trusts in existence on August 20, 1996
which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of
the
Certificates which is allocated to any Certificate. As of any
date of
determination, (a) 1% of all Voting Rights shall be allocated to
the Holders of
the Class X Certificates, (b) 1% of all Voting Rights shall be
allocated to the
Holders of the Class 7-CE Certificates, (h) 1% of all Voting
Rights shall be
allocated to the Holders of the Residual Certificates and (d)
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.
Wachovia Custodial Agreement: The Custodial Agreement, dated
October
29, 2004, by and among the Depositor, the Servicers (other than
Countrywide Home
Loans Servicing LP) and the Trustee, or any successor custodial
agreement
entered into pursuant to Section 9.12.
Wells Fargo Bank: Wells Fargo Bank, N.A., or its successor
in
interest.
Wells Fargo Servicing Agreement: The Seller's Warranties and
Servicing Agreement, dated as of October 1, 2004, by and between
BANA and Wells
Fargo Bank.
Yield Maintenance Agreements: Any of the four yield
maintenance
agreements between the Securities Administrator, on behalf of
the Trust, and the
Yield Maintenance Agreement Provider substantially in the form
attached hereto
as Exhibit Q. The Yield Maintenance Agreements shall not be an
asset of any
REMIC formed under this Agreement.
Yield Maintenance Agreement Payment: On each Distribution
Date
through the Distribution Date in November 2014, the amount equal
to the sum of
(A) the product of (x) the excess of the lesser of (i) One-Month
LIBOR and (ii)
11.50% over the strike rate for such Distribution Date, as set
forth under the
heading "3/1 Collateral" on the table in Exhibit Q hereto, (y)
the product of
the cap notional amount for such Distribution Date and the scale
factor, each as
set forth under the heading "3/1 Collateral" on the table in
Exhibit Q hereto
and (z) a fraction, the numerator of which is the actual number
of days elapsed
since the previous Distribution date to but excluding the
current Distribution
Date and the denominator of which is 360 plus (B) the product of
(x) the excess
of the lesser of (i) One-Month LIBOR and (ii) 11.50% over the
strike rate for
such Distribution Date, as set forth under the heading "5/1
Collateral" on the
table in Exhibit Q hereto, (y) the product of the cap notional
amount for such
Distribution Date and the scale factor, each as set forth under
the heading "5/1
Collateral" on the table in Exhibit Q hereto and (z) a fraction,
the numerator
of which is the actual number of days elapsed since the previous
Distribution
date to but excluding the current Distribution Date and the
denominator of which
is 360 plus (C) the product of (x) the excess of the lesser of
(i) One-Month
LIBOR and (ii) 11.50% over the strike rate for such Distribution
Date, as set
forth under the heading "7/1 Collateral" on the table in Exhibit
Q hereto, (y)
the product of the cap notional amount for such Distribution
Date and the scale
factor, each as set forth under the heading "7/1 Collateral" on
the table in
Exhibit Q hereto and (z) a fraction, the numerator of which is
the actual number
of days elapsed since the previous Distribution date to but
excluding the
current Distribution Date and the denominator of which is 360
plus (D) the
product of (x) the excess of the lesser of (i) One-Month LIBOR
and (ii) 11.50%
over the strike rate for such Distribution Date, as set forth
under the heading
"10/1 Collateral" on the table in Exhibit Q hereto, (y) the
product of the cap
notional amount for such Distribution Date and the scale factor,
each as set
forth under the heading "10/1 Collateral" on the table in
Exhibit Q hereto and
(z) a fraction, the numerator of which is the actual number of
days elapsed
since the previous Distribution date to but excluding the
current Distribution
Date and the denominator of which is 360.
Yield Maintenance Agreement Provider: Bank of America,
National
Association and any successor thereto.
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 or (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to the Trustee or the
Custodian on
behalf of the Trustee, for the benefit of the
Certificateholders, the following
documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original Mortgage Note, endorsed by manual or
facsimile
signature in the following form: "Pay to the order of Wachovia
Bank,
National Association, as trustee for holders of Banc of America
Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-B,
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 under the Wells Fargo
Servicing
Agreement, 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-B" (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 under the Wells Fargo Servicing Agreement, 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 under the Wells Fargo Servicing Agreement, the original
or
duplicate original mortgagee title insurance policy and all
riders
thereto;
(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; and
(viii) the original of any security agreement, chattel mortgage
or
equivalent document executed in connection with the
Mortgage;
provided, however, that on the Closing Date, with respect to
item (iii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the Trustee or the Custodian on
behalf of the Trustee
a copy of such Assignment of Mortgage in blank rather than in
the name of the
Trustee and has caused the 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 any 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 (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 in the case of clause (v) above,
the Depositor
shall promptly deliver or cause to be delivered to the Trustee
or the Custodian
on behalf of the Trustee, in the case of clause (ii), (iii) or
(iv) above, such
Mortgage, such interim assignment or such assumption,
modification,
consolidation or extension agreement, as the case may be, with
evidence of
recording indicated thereon upon receipt thereof from the public
recording
office, but in no event shall any such delivery of any such
documents or
instruments be made later than one year following the Closing
Date, unless, in
the case of clause (ii), (iii) or (iv) above, there has been a
continuing delay
at the applicable recording office or, in the case of clause (v)
above, there
has been a continuing delay at the applicable insurer and the
Depositor has
delivered the Officer's Certificate to such effect to the
Trustee. The Depositor
shall forward or cause to be forwarded to the Trustee or the
Custodian on behalf
of the Trustee (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.
Following a Document Transfer Event, the Depositor shall,
with
respect to Mortgage Loans purchased by the Seller under the
Wells Fargo
Servicing Agreement, deliver, or cause to be delivered, to 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, 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, an original copy of any intervening
assignment of
Mortgage showing a complete chain of assignments;
(2) the original or a certified copy of lender's title
insurance
policy; and
(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.
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 any Rating Agency in order to obtain the initial
ratings on the
Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of delivering the above
documents to
the Trustee, or the Custodian on 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 or the Custodian 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 Depositor has substituted a Substitute
Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for
the
benefit of the Certificateholders to reflect the removal of each
Mortgage Loan
that has become a Defective Mortgage Loan and the substitution
of the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the
amended
Mortgage Loan Schedule to the Securities Administrator, the
Trustee and the
Custodian. Upon such substitution, each Substitute Mortgage Loan
shall be
subject to the terms of this Agreement in all respects, and the
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 in a
Loan Group as of the date of substitution is less than the
aggregate Stated
Principal Balance of all such Defective Mortgage Loans in a Loan
Group (after
application of the principal portion of the Monthly Payments due
in the month of
substitution) (the "Substitution Adjustment Amount" for such
Loan Group) plus an
amount equal to the aggregate of any unreimbursed Advances with
respect to such
Defective Mortgage Loans shall be remitted 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 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) and (viii).
The Securities Administrator is hereby directed to execute
and
deliver, on behalf of the Trust, the Yield Maintenance
Agreements.
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer.
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. The Master Servicer has power
and
authority to execute and deliver this Agreement and to perform
in
accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be delivered
pursuant
to this Agreement) by the Master Servicer and the consummation
of the
transactions contemplated hereby have been duly and validly
authorized.
This Agreement, assuming due authorization, execution and
delivery by the
other parties hereto, evidences the valid, binding and
enforceable
obligation of the Master Servicer, subject to applicable law
except as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation,
receivership, moratorium, reorganization or other similar laws
affecting
the enforcement of the rights of creditors and (B) general
principles of
equity, whether enforcement is sought in a proceeding in equity
or at law.
All requisite corporate action has been taken by the Master
Servicer to
make this Agreement valid and binding upon the Master Servicer
in
accordance with its terms.
(ii) No consent, approval, authorization or order is required
for
the transactions contemplated by this Agreement from any
court,
governmental agency or body, or federal or state regulatory
authority
having jurisdiction over the Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or will,
prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by
this
Agreement are in the ordinary course of business of the Master
Servicer
and will not result in the breach of any term or provision of
the charter
or by-laws of the Master Servicer or result in the breach of any
term or
provision of, or conflict with or constitute a default under or
result in
the acceleration of any obligation under, any agreement,
indenture or loan
or credit agreement or other instrument to which the Master
Servicer or
its property is subject, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Master
Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the best knowledge of the Master Servicer, threatened
against the
Master Servicer which, either individually or in the aggregate,
would
result in any material adverse change in the business,
operations,
financial condition, properties or assets of the Master
Servicer, or in
any material impairment of the right or ability of the Master
Servicer to
carry on its business substantially as now conducted or which
would draw
into question the validity of this Agreement or the Mortgage
Loans or of
any action taken or to be taken in connection with the
obligations of the
Master Servicer contemplated herein, or which would materially
impair the
ability of the Master Servicer to perform under the terms of
this
Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the respective Mortgage Files to
the Trustee or
the Custodian 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 7-CE
Certificates, the Group 7 Certificates and the Residual
Certificates) as
"regular interests" and the Class 3-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
designates the
Group 7 Certificates and the Class 7-CE Certificates as "regular
interests" and
the Class 7-R Certificate as the single class of "residual
interest" in the
Group 7 Upper-Tier REMIC for the purposes of Code Sections
860G(a)(1) and
860G(a)(2), respectively. The Depositor hereby further
designates (i) the
Uncertificated Lower-Tier Interests as classes of "regular
interests" and the
Class 3-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; (ii) the Uncertificated Middle-Tier Interests as
classes of
"regular interests" and the Class 3-A-MR Certificate as the
single class of
"residual interest" in the Middle-Tier REMIC for the purposes of
Code Sections
860G(a)(1) and 860G(a)(2), respectively; and (iii) the
Uncertificated Group 7
Lower-Tier Interests as classes of "regular interests" and the
Class 7-LR
Certificate as the single class of "residual interest" in the
Group 7 Lower-Tier
REMIC for the purposes of Code Sections 860G(a)(1) and
860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each REMIC within the
meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for
purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest
possible maturity date" of the regular interests in each REMIC
is December 25,
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
Middle-Tier REMIC and
the Certificateholders (other than holders of the Group 7
Certificates) and that
it holds the Uncertificated Middle-Tier Interests on behalf of
the Upper-Tier
REMIC and the Certificateholders (other than holders of Group 7
Certificates),
(ii) acknowledges the issuance of and hereby declares that it
holds the
Uncertificated Group 7 Lower-Tier Interests on behalf of the
Group 7 Upper-Tier
REMIC and the holders of Group 7 Certificates, and (iii) has
executed and
delivered to or upon the order of the Depositor, in exchange for
the Mortgage
Loans, Uncertificated Lower-Tier Interests, Uncertificated
Middle-Tier Interests
and Uncertificated Group 7 Lower-Tier Interest, together with
all other assets
included in the definition of "Trust Estate," receipt of which,
together with
the Uncertificated Lower-Tier Interests and Uncertificated
Middle-Tier
Interests, is hereby acknowledged, the Certificates in
authorized denominations
which evidence ownership of the entire Trust Estate (exclusive
of the assets of
the Grantor Trust). The Trustee hereby declares that it holds
the Yield
Maintenance Agreements, the Reserve Account and the obligation
of the Class 7-CE
Certificateholders to pay Cap Carryover Amounts as assets of the
Grantor Trust
for the benefit of the holders of each interest-bearing Class of
Group 7
Certificates.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and
on
behalf of the Certificateholders, the Master Servicer shall
supervise, monitor
and oversee the obligations of the Servicers to service and
administer their
respective Mortgage Loans in accordance with the terms of the
applicable
Servicing Agreement and shall have full power and authority to
do any and all
things which it may deem necessary or desirable in connection
with such master
servicing and administration. In performing its obligations
hereunder, the
Master Servicer shall act in a manner consistent with this
Agreement, subject to
the prior sentence, and with customary 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 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
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 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 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.
(d) The Master Servicer shall require each Servicer to comply
with
the remittance requirements and other obligations set forth in
the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not
assume
liability for the representations and warranties of the
Servicer, if any, that
it replaces.
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; Master
Servicer
Custodial Account, Servicer Custodial Account, Distribution
Account and Reserve
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.
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
Distribution Account, which shall be deemed to consist of ten
sub-accounts 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
Distribution Account shall be an Eligible Account.
(d) fically 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.
Amounts received in respect of the Group 1 Mortgage Loans shall
be deemed
deposited in Sub-Account 1. Amounts received in respect of the
Group 2 Mortgage
Loans shall be deemed deposited in Sub-Account 2. Amounts
received in respect of
the Group 3 Mortgage Loans shall be deemed deposited in
Sub-Account 3. Amounts
received in respect of the Group 4 Mortgage Loans shall be
deemed deposited in
Sub-Account 4. Amounts received in respect of the Group 5
Mortgage Loans shall
be deemed deposited in Sub-Account 5. Amounts received in
respect of the Group 6
Mortgage Loans shall be deemed deposited in Sub-Account 6.
Amounts received in
respect of the Group 7 Mortgage Loans shall be deemed deposited
in Sub-Account
7.
(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
Distribution Account is maintained shall invest the funds
therein if directed in
writing by the Securities Administrator in Permitted Investments
that are
obligations of the institution that maintains the Distribution
Account, which
shall mature on the Distribution Date and shall not be sold or
disposed of prior
to its maturity. All such Permitted Investments shall be made in
the name of the
Trustee, for the benefit of the Certificateholders. All income
and gains net of
any losses realized since the preceding Distribution Date from
Permitted
Investments of funds in the Distribution Account shall be for
the benefit of the
Securities Administrator as additional compensation and the
amount of any losses
realized in the Distribution Account in respect of any such
Permitted
Investments shall promptly be deposited by the Securities
Administrator from its
own funds in the Distribution Account.
(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
Distribution Account maintained by the Securities Administrator
not later than
30 days after and not more than 45 days prior to any change
thereof. The
creation of the Master Servicer Custodial Account and the
Distribution Account
shall be evidenced by a certification substantially in the form
of Exhibit F
hereto.
(g) The Securities Administrator shall designate each of the
Middle-Tier Sub-Account and the Upper-Tier Certificate
Sub-Account and the Group
7 Upper-Tier Distribution Account as a sub-account of the
Distribution Account.
On each Distribution Date, the Securities Administrator shall,
from funds
available on deposit in the Distribution Account (and deemed on
deposit in
Sub-Account 1, Sub-Account 2, Sub-Account 3, Sub-Account 4,
Sub-Account 5 and
Sub-Account 6, as applicable), be deemed to deposit into the
Middle-Tier
Sub-Account, the Lower-Tier Distribution Amount. The Securities
Administrator
shall then immediately, from funds available in the Middle-Tier
Sub-Account, be
deemed to deposit into the Upper-Tier Certificate Sub-Account,
the Middle-Tier
Distribution Amount. On each Distribution Date, the Securities
Administrator
shall, from funds available on deposit in the Distribution
Account (and deemed
on deposit in Sub-Account 7), be deemed to deposit into the
Group 7 Upper-Tier
Sub-Account, the Group 7 Lower-Tier Distribution Amount.
(h) (i) The Securities Administrator shall establish and
maintain
the Reserve Account, held in trust for the benefit of the
Holders of the Offered
Group 7 Certificates. The Securities Administrator shall deposit
in the Reserve
Account on the date received by it, any Yield Maintenance
Agreement Payments
received from the Yield Maintenance Agreement Counterparty for
the related
Distribution Date. Funds on deposit in the Reserve Account shall
remain
uninvested. On each Distribution Date, the Securities
Administrator shall
withdraw from the Reserve Account any Yield Maintenance
Agreement Payments and
apply them in the following order of priority:
(A) to the Offered Group 7 Certificates, any remaining
unpaid
Cap Carryover Amounts for such classes for such Distribution
Date
(after distributions pursuant to Section 5.03(c) hereof,
sequentially, to the Class 7-A-1, Class 7-M-1, Class 7-M-2 and
Class
7-M-3 Certificates, in that order; and
(B) to the Class 7-CE Certificates, any remaining amounts on
deposit in the Reserve Account.
(ii) The Trustee shall account for the Reserve Account as an
asset
of the Grantor Trust and not an asset of any REMIC created
pursuant to
this Agreement. The beneficial owner of the Reserve Account is
the Class
7-CE Certificateholder. For all federal tax purposes, amounts
transferred
or reimbursed by the Group 7 Upper-Tier REMIC to the Reserve
Account shall
be treated as distributions by the Securities Administrator to
the Class
7-CE Certificateholder.
(iii) Any Cap Carryover Amounts paid by the Securities
Administrator
pursuant to this Section 3.09(h) to the Offered Group 7
Certificates shall
be accounted for by the Trustee as amounts paid first to the
Class 7-CE
Certificates and then to the Offered Group 7 Certificates from
the Grantor
Trust. In addition, the Trustee shall account for the Offered
Group 7
Certificates' rights to receive payments of Cap Carryover
Amounts as
rights in limited recourse interest rate cap contracts written
by the
Class 7-CE Certificates in favor of the Offered Group 7
Certificates.
(i) For federal tax return and information reporting, the right
of
the Holders of the Offered Group 7 Certificates to receive
payments under the
Yield Maintenance Agreements in respect of any related Yield
Maintenance
Agreement Payments shall be assigned a value of zero.
Section 3.10 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts. (a) 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 of Securities Administrator and Trustee
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 Master Servicer
Custodial Account and the Distribution Account.
(a) The Securities Administrator shall withdraw funds from
the
Distribution 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 the Securities Administrator the
Securities
Administrator Fee and to pay itself any Master Servicer
Custodial Account
Reinvestment Income;
(ii) to pay 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 the Trustee,
pursuant
to Section 3.22), such right of reimbursement pursuant to this
clause
(iii) being limited first to amounts received on the Mortgage
Loans
serviced by such Servicer (or, if applicable, the Master
Servicer or the
Trustee) in the related Loan Group in respect of which any such
Advance
was made and then limited to amounts received on all the
Mortgage Loans
serviced by such Servicer (or, if applicable, the Master
Servicer or the
Trustee);
(iv) to reimburse the Servicers for any Nonrecoverable
Advance
previously made, such right of reimbursement pursuant to this
clause (iv)
being limited first to amounts received on the Mortgage Loans
serviced by
such Servicer in the same Loan Group as the Mortgage Loan(s) in
respect of
which such Nonrecoverable Advance was made and then limited to
amounts
received on all the Mortgage Loans serviced by such Servicer
(or, 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,
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
Distribution
Account and deemed to be on deposit in the Middle-Tier
Sub-Account shall be used
to make payments on the Class 3-A-MR Certificate as provided in
Sections 5.01
and 5.02. On each Distribution Date, funds on deposit in the
Distribution
Account and deemed to be on deposit in the Upper-Tier
Certificate Sub-Account
shall be used to make payments on the Regular Certificates
(other than the
Offered Group 7 Certificates) and the Class 3-A-R Certificate as
provided in
Sections 5.01 and 5.02. On each Distribution Date, funds on
deposit in the
Distribution Account and deemed to be on deposit in the Group 7
Upper-Tier
Certificate Sub-Account shall be used to make payments on the
Offered Group 7
Certificates, the Class 7-CE Certificates and the Class 7-R
Certificate as
provided in Section 5.03. The Distribution Account shall be
cleared and
terminated upon termination of this Agreement pursuant to
Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other
Insurance.
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 3.09 and 3.10.
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. (a) 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) The Master Servicer may enter into a special servicing
agreement
with an unaffiliated Holder of 100% Percentage Interest of a
Class of Class B
Certificates or the Class M Certificates or a holder of a class
of securities
representing interests in the Class B Certificates or the Class
M Certificates
alone or together with other subordinated mortgage pass-through
certificates.
Such agreement shall be substantially in the form attached
hereto as Exhibit K
and subject to each Rating Agency's acknowledgment that the
ratings of the
Certificates in effect immediately prior to the entering into
such agreement
would not be qualified, downgraded or withdrawn and the
Certificates would not
be placed on credit review status (except for possible
upgrading) as a result of
such agreement. Any such agreement may contain provisions
whereby such holder
may instruct the Master Servicer to instruct the applicable
Servicer to the
extent provided in the applicable Servicing Agreement to
commence or delay
foreclosure proceedings with respect to delinquent Mortgage
Loans and will
contain provisions for the deposit of cash by the holder that
would be available
for distribution to Certificateholders if Liquidation Proceeds
are less than
they otherwise may have been had the Servicer acted in
accordance with its
normal procedures.
(c) 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.
(d) 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.
(e) 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.
(f) 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 related 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 any REMIC
created hereunder to the imposition of any federal, state or
local income taxes
on the income earned from such Mortgaged Property under Section
860G(c) of the
Code or otherwise, unless the Master Servicer or related
Servicer, as
applicable, has agreed to indemnify and hold harmless the Trust
with respect to
the imposition of any such taxes.
(g) On the second 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 Custodian, the related Servicer and the Master 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 to 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 or
the Custodian
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 a Periodic Advance in accordance with the applicable
Servicing
Agreement. A Servicer shall be entitled to be reimbursed from
the applicable
Servicer Custodial Account for all Advances of its own funds
made pursuant to
the related Servicing Agreement. Based upon information set
forth in the
servicer reports, the Master Servicer shall inform the
Securities Administrator
of the amount of the Periodic Advance to be made by a Servicer
with respect to
each Loan Group 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
5.06(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, and
thereafter there shall be no further obligations under
paragraphs (a) through
(e) of this Section commencing with the fiscal year in which the
Form 15 is
filed (other than the obligations to be performed in such fiscal
year that
relate back to the prior fiscal year).
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 Distribution 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 or Section 5.03, as applicable.
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 for the Shifting
Interest
Groups. (a) On each Distribution Date, based solely on the
information contained
in the Master Servicer's Certificate, the Securities
Administrator shall
withdraw from the Distribution Account (to the extent funds are
available
therein), the Pool Distribution Amount for each Shifting
Interest Loan Group, in
an amount as specified in written notice received by the
Securities
Administrator from the Master Servicer pursuant to Section 4.01
hereof, and
shall apply such funds first, to distributions in respect of the
Uncertificated
Lower-Tier Interests as specified in this Section 5.02(a) and to
the Class
3-A-LR Certificate, second, to the Uncertificated Middle-Tier
Interests, as
specified in this Section 5.02(a) and to the Class 3-A-MR
Certificates and then
to distributions on the Shifting Interest Certificates (other
than the Class
3-A-MR and Class 3-A-LR Certificates). Distributions shall be
made on the
Shifting Interest Certificates in the following order of
priority and to the
extent of such funds, and except as set forth below, paying
Group 1 solely from
the Pool Distribution Amount for Loan Group 1, paying Group 2
solely from the
Pool Distribution Amount for Loan Group 2, paying Group 3 solely
from the Pool
Distribution Amount for Loan Group 3, paying Group 4 solely from
the Pool
Distribution Amount for Loan Group 4, paying Group 5 solely from
the Pool
Distribution Amount for Loan Group 5, paying Group 6 solely from
the Pool
Distribution Amount for Loan Group 6, paying the Class CB
Certificates from the
combined Pool Distribution Amounts for Loan Group 1 and Loan
Group 2 and paying
the Class DB Certificates from the combined Pool Distribution
Amounts for Loan
Group 3, Loan Group 4 and Loan Group 5, in the following order
of priority and
to the extent of such funds:
(i) to each Class of Senior Certificates of such Shifting
Interest
Group, 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) to the Senior Certificates of a Shifting Interest Group, in
an
aggregate amount up to the Senior Principal Distribution Amount
for such
Group, such distribution to be allocated among such Classes in
accordance
with Section 5.02(b);
(iii) to each Class of Class CB Certificates, Class DB
Certificates
or Class 6-B Certificates, subject to paragraph (d) below, in
the
following order of priority:
(A) to the Class CB-1 Certificates, Class DB-1 Certificates
or
Class 6-B-1 Certificates, as the case may be, an amount
allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(B) to the Class CB-1 Certificates, Class DB-1 Certificates
or
Class 6-B-1 Certificates, as the case may be, an amount
allocable to
principal equal to its Pro Rata Share for such Distribution
Date
until the Class Certificate Balance thereof has been reduced
to
zero;
(C) to the Class CB-2 Certificates, Class DB-2 Certificates
or
Class 6-B-2 Certificates, as the case may be, an amount
allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(D) to the Class CB-2 Certificates, Class DB-2 Certificates
or
Class 6-B-2 Certificates, as the case may be, an amount
allocable to
principal equal to its Pro Rata Share for such Distribution
Date
until the Class Certificate Balance thereof has been reduced
to
zero;
(E) to the Class CB-3 Certificates, Class DB-3 Certificates
or
Class 6-B-3 Certificates, as the case may be, an amount
allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(F) to the Class CB-3 Certificates, Class DB-3 Certificates
or
Class 6-B-3 Certificates, as the case may be, an amount
allocable to
principal equal to its Pro Rata Share for such Distribution
Date
until the Class Certificate Balance thereof has been reduced
to
zero;
(G) to the Class CB-4 Certificates, Class DB-4 Certificates
or
Class 6-B-4 Certificates, as the case may be, an amount
allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(H) to the Class CB-4 Certificates, Class DB-4 Certificates
or
Class 6-B-4 Certificates, as the case may be, an amount
allocable to
principal equal to its Pro Rata Share for such Distribution
Date
until the Class Certificate Balance thereof has been reduced
to
zero;
(I) to the Class CB-5 Certificates, Class DB-5 Certificates
or
Class 6-B-5 Certificates, as the case may be, an amount
allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(J) to the Class CB-5 Certificates, Class DB-5 Certificates
or
Class 6-B-5 Certificates, as the case may be, an amount
allocable to
principal equal to its Pro Rata Share for such Distribution
Date
until the Class Certificate Balance thereof has been reduced
to
zero;
(K) to the Class CB-6 Certificates, Class DB-6 Certificates
or
Class 6-B-6 Certificates, as the case may be, an amount
allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date; and
(L) to the Class CB-6 Certificates, Class DB-6 Certificates
or
Class 6-B-6 Certificates, as the case may be, an amount
allocable to
principal equal to its Pro Rata Share for such Distribution
Date
until the Class Certificate Balance thereof has been reduced
to
zero; and
(iv) to the Holder of the Class 3-A-R Certificate, any
amounts
remaining in the Upper-Tier Certificate Sub-Account, to the
Holder of
Class 3-A-MR Certificate, any amounts remaining in the
Middle-Tier
Sub-Account and to the Holder of the Class 3-A-LR Certificate,
any
remaining Pool Distribution Amounts.
Notwithstanding the foregoing, on each Distribution Date prior
to
the Senior Credit Support Depletion Date for the CB Crossed
Groups but on or
after the date on which the sum of the Class Certificate
Balances of the Senior
Certificates of a CB Crossed Group has been reduced to zero,
amounts otherwise
distributable as Unscheduled Principal Payments on the Class CB
Certificates
will be paid as principal to the Classes of Senior Certificates
of the remaining
CB Crossed Group, in accordance with the priorities set forth
for the applicable
Group in (b)(i) or (b)(ii) below, provided that on such
Distribution Date (a)
the CB Crossed Loan Group Subordinate Percentage for such
Distribution Date is
less than twice the initial CB Crossed Loan Group Subordinate
Percentage or (b)
the outstanding principal balance of all Mortgage Loans in the
CB Crossed Loan
Groups (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 sum of the Class
Certificate Balances
of the Class CB Certificates, is equal to or greater than 50%.
In addition, if
on any Distribution Date the sum of the Class Certificate
Balances of the Senior
Certificates of a CB Crossed Group is greater than the Adjusted
Pool Amount of
the related CB Crossed Loan Group (any such Group, the "CB
Undercollateralized
Group" and any such excess, the "CB Undercollateralized
Amount"), all amounts
otherwise distributable as principal on the Class CB
Certificates pursuant to
Section 5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in that
order, will be paid
as principal to the Senior Certificates of the CB
Undercollateralized Group in
accordance with the priorities set forth for the applicable
Group below under
(b)(i) or (b)(ii) until the sum of the Class Certificate
Balances of the Senior
Certificates of the CB Undercollateralized Group equals the
Adjusted Pool Amount
of the Related Loan Group. Also, the amount of any Class Unpaid
Interest
Shortfalls with respect to the CB Undercollateralized Group
(including any Class
Unpaid Interest Shortfalls for such Distribution Date) will be
paid to the CB
Undercollateralized Group pursuant to Section 5.02(a)(i) prior
to the payment of
any CB Undercollateralized Amount from amounts otherwise
distributable as
principal on the Class CB Certificates pursuant to Section
5.02(a)(iii)(L), (J)
(H), (F), (D) and (B), in that order; such amount will be paid
to the Senior
Certificates of such CB Undercollateralized Group up to their
Interest
Distribution Amounts for such Distribution Date.
Notwithstanding the foregoing, on each Distribution Date prior
to
the Senior Credit Support Depletion Date for the DB Crossed
Groups but on or
after the date on which the sum of the Class Certificate
Balances of the Senior
Certificates of a DB Crossed Group has been reduced to zero,
amounts otherwise
distributable as Unscheduled Principal Payments on the Class DB
Certificates
will be paid as principal to the Classes of Senior Certificates
of the remaining
DB Crossed Groups, in accordance with the priorities set forth
for the
applicable Group in (b)(iii), (b)(iv) or (b)(v) below, provided
that on such
Distribution Date (a) the DB Crossed Loan Group Subordinate
Percentage for such
Distribution Date is less than twice the initial DB Crossed Loan
Group
Subordinate Percentage or (b) the outstanding principal balance
of all Mortgage
Loans in the DB Crossed Loan Groups (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 sum
of the Class Certificate Balances of the Class DB Certificates,
is equal to or
greater than 50%. If the Senior Certificates of two DB Crossed
Groups remain
outstanding, the distributions described in the previous
sentence will be made
to the Senior Certificates of such Groups, pro rata, in
proportion to the sum of
the Class Certificate Balances of the Senior Certificates of
each such Group. In
addition, if on any Distribution Date the sum of the Class
Certificate Balances
of the Senior Certificates of a DB Crossed Group is greater than
the Adjusted
Pool Amount of the related DB Crossed Loan Group (any such
Group, the "DB
Undercollateralized Group" and any such excess, the "DB
Undercollateralized
Amount"), all amounts otherwise distributable as principal on
the Class DB
Certificates pursuant to Section 5.02(a)(iii)(L), (J), (H), (F),
(D) and (B), in
that order, will be paid as principal to the Senior Certificates
of the DB
Undercollateralized Group in accordance with the priorities set
forth for the
applicable Group below under (b)(iii), (b)(iv) or (b)(v) until
the sum of the
Class Certificate Balances of the Senior Certificates of the
DB
Undercollateralized Group equals the Adjusted Pool Amount of the
Related Loan
Group. Also, the amount of any Class Unpaid Interest Shortfalls
with respect to
the DB Undercollateralized Group (including any Class Unpaid
Interest Shortfalls
for such Distribution Date) will be paid to the DB
Undercollateralized Group
pursuant to Section 5.02(a)(i) prior to the payment of any
DB
Undercollateralized Amount from amounts otherwise distributable
as principal on
the Class DB Certificates pursuant to 5.02(a)(iii)(L), (J) (H),
(F), (D) and
(B), in that order; such amount will be paid to the Senior
Certificates of such
DB Undercollateralized Group up to their Interest Distribution
Amounts for such
Distribution Date. If two Groups are DB Undercollateralized
Groups, the
distributions described above will be made, pro rata, in
proportion to the
amount by which the sum of the Class Certificate Balances of the
Senior
Certificates of each such Group exceeds the Adjusted Pool Amount
of the related
Loan Group.
No Class of Shifting Interest 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.
All distributions in respect of the Interest Distribution Amount
for
a Shifting Interest 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 Amounts received with respect to
the Shifting
Interest Loan Groups sequentially to the Classes of Shifting
Interest
Certificates then outstanding which bore the loss to which such
Reimbursement
Amount relates beginning with the most senior of such Classes of
Shifting
Interest Certificates, up to, with respect to each Class, the
amount of loss
borne by such Class. Any Reimbursement Amount remaining after
the application
described in the preceding sentence shall be included in the
Pool Distribution
Amount for the applicable Loan Group.
(b) (i) With respect to the Class A Certificates of Group 1:
On each Distribution Date prior to the Senior Credit Support
Depletion Date for Group 1, the amount distributable to the
Group 1 Senior
Certificates pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be
distributed as principal concurrently, to the Class 1-A-1 and
Class 1-A-2
Certificates, pro rata, until their Class Certificate Balances
have been reduced
to zero.
(ii) With respect to the Class A Certificates of Group 2:
On each Distribution Date prior to the Senior Credit Support
Depletion Date for Group 2, the amount distributable to the
Group 2 Senior
Certificates pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be
distributed as principal concurrently, to the Class 2-A-1 and
Class 2-A-2
Certificates, pro rata, until their Class Certificate Balances
have been reduced
to zero.
(iii) With respect to the Class A Certificates of Group 3:
On each Distribution Date prior to the Senior Credit Support
Depletion Date for Group 3, the amount distributable to the
Group 3 Senior
Certificates pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be
distributed as principal, sequentially, as follows:
first, concurrently, to the Class 3-A-R, Class 3-A-MR and
Class
3-A-LR Certificates, pro rata, until their Class Certificate
Balances have been
reduced to zero; and
second, concurrently, to the Class 3-A-1 and Class 3-A-2
Certificates, pro rata, until their Class Certificate Balances
have been reduced
to zero.
(iv) With respect to the Class A Certificates of Group 4:
On each Distribution Date prior to the Senior Credit Support
Depletion Date for Group 4, the amount distributable to the
Group 4 Senior
Certificates pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be
distributed as principal concurrently, to the Class 4-A-1 and
Class 4-A-2
Certificates, pro rata, until their Class Certificate Balance
have been reduced
to zero.
(v) With respect to the Class A Certificates of Group 5:
On each Distribution Date prior to the Senior Credit Support
Depletion Date for Group 5, the amount distributable to the
Group 5 Senior
Certificates pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be
distributed as principal to the Class 5-A-1 Certificates until
their Class
Certificate Balance has been reduced to zero.
(vi) With respect to the Class A Certificates of Group 6:
On each Distribution Date prior to the Senior Credit Support
Depletion Date for Group 6, the amount distributable to the
Group 6 Senior
Certificates pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be
distributed as principal to the Class 6-A-1 Certificates until
their Class
Certificate Balance has been reduced to zero.
The Class X 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 Group 1 Senior Certificates, Group 2 Senior
Certificates and Class CB
Certificates for such Distribution Date 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 for the CB Crossed Loan
Groups, (B) on
and after the applicable Senior Credit Support Depletion Date,
any other
Realized Loss on the Mortgage Loans in the Related Loan Group
allocable to
interest and (C) Relief Act Reductions incurred on the Mortgage
Loans in the CB
Crossed Loan Groups during the calendar month preceding the
month of such
Distribution Date.
On each Distribution Date, Accrued Certificate Interest for
each
Class of Group 3 Senior Certificates, Group 4 Senior
Certificates, Group 5
Senior Certificates and Class DB Certificates for such
Distribution Date 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 for the DB Crossed Loan Groups, (B) on and after the
applicable
Senior Credit Support Depletion Date, any other Realized Loss on
the Mortgage
Loans in the Related Loan Group allocable to interest and (C)
Relief Act
Reductions incurred on the Mortgage Loans in the DB Crossed Loan
Groups during
the calendar month preceding the month of such Distribution
Date.
On each Distribution Date, Accrued Certificate Interest for
each
Class of Group 6 Certificates for such Distribution Date 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
for Loan Group 6,
(B) on and after the applicable Senior Credit Support Depletion
Date, any other
Realized Loss on the Mortgage Loans in the Loan Group 6
allocable to interest
and (C) Relief Act Reductions incurred on the Group 6 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)(iii), if with respect to any Class of Class CB
Certificates, Class DB
Certificates or Class 6-B Certificates on any Distribution Date,
(i) the sum of
the Class Certificate Balances immediately prior to such
Distribution Date of
all Classes of Class CB Certificates, Class DB Certificates or
Class 6-B
Certificates, as the case may be, which have a higher numerical
Class
designation than such Class, divided by (ii) the aggregate Pool
Stated Principal
Balance for Loan Group 1 and Loan Group 2 in the case of the
Class CB
Certificates, the aggregate Pool Stated Principal Balance for
Loan Group 3, Loan
Group 4 and Loan Group 5 in the case of the Class DB
Certificates and the Pool
Stated Principal Balance for Loan Group 6 in the case of the
Class 6-B
Certificates (for each Class, the "Fractional Interest") is less
than the
Original Fractional Interest for such Class, no distribution of
principal in
respect of clause (ii) of the Subordinate Principal Distribution
Amounts will be
made to any Classes of Class CB Certificates, Class DB
Certificates or Class 6-B
Certificates junior to such Class (the "Restricted Classes") and
the Class
Certificate Balances of the Restricted Classes of Class CB
Certificates, Class
DB Certificates or Class 6-B Certificates will not be used in
determining the
Pro Rata Share for the Class CB Certificates, Class DB
Certificates or Class 6-B
Certificates that are not Restricted Classes. If the sum of the
Class
Certificate Balances of the Class CB Certificates, Class DB
Certificates or
Class 6-B Certificates that are not Restricted Classes are
reduced to zero,
notwithstanding the previous sentence, any funds remaining will
be distributed
sequentially to the Class CB Certificates, Class DB Certificates
or Class 6-B
Certificates that are Restricted Classes of such Related Group
in order of their
respective numerical Class designations (beginning with the
Class of Class CB
Certificates, Class DB Certificates or Class 6-B Certificates
that is a
Restricted Class then outstanding with the lowest numerical
Class designation).
Section 5.03 Priorities of Distributions for Group 7.
(a) Interest Distributions with Respect to the Group 7
Certificates:
On each Distribution Date, the Securities Administrator
shall
withdraw from the Distribution Account (to the extent funds are
available
therein) the Group 7 Interest Remittance Amount and apply it in
the following
order of priority (based upon the Mortgage Loan information
provided to it in
the Master Servicer's Certificate, upon which the Securities
Administrator may
conclusively rely):
(i) to the Class 7-A-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(ii) to the Class 7-A-1 Certificates, the Interest Carry
Forward
Amount thereon for such Distribution Date; and
(iii) to the Class 7-M-1 Certificates, the Accrued
Certificate
Interest thereon for such Distribution Date;
(iv) to the Class 7-M-2 Certificates, the Accrued
Certificate
Interest thereon for such Distribution Date;
(v) to the Class 7-M-3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date; and
(vi) the amount, if any, of the Group 7 Interest Remittance
Amount
remaining after application with respect to the priorities set
forth above
will be applied as described under Section 5.03(c) hereof.
(b) Distributions of Principal with Respect to the Group 7
Certificates:
On each Distribution Date, the Securities Administrator
shall
withdraw from the Distribution Account (to the extent funds are
available
therein) the Group 7 Principal Distribution Amount and shall
make the following
distributions in the following order of priority (based upon the
Mortgage Loan
information provided to it in the Master Servicer's Certificate,
upon which the
Securities Administrator may conclusively rely):
(i) before the Stepdown Date or with respect to which a
Trigger
Event is in effect, as follows:
first, to the Class 7-A-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero:
second, to the Class 7-M-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
third, to the Class 7-M-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
fourth, to the Class 7-M-3 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
fifth, any remaining Group 7 Principal Distribution Amount
will be distributed as part of the Monthly Excess Cashflow
Amount as
set forth in Section 5.03(c).
(ii) on or after the Stepdown Date and as long as a Trigger
Event is
not in effect, as follows:
first, to the Class 7-A-1 Certificates, up to the Group 7
Senior Principal Distribution Amount, until the Class
Certificate
Balance thereof has been reduced to zero;
second, to the Class 7-M-1 Certificates, up to the Class
7-M-1
Principal Distribution Amount, until the Class Certificate
Balance
thereof has been reduced to zero;
third, to the Class 7-M-2 Certificates, up to the Class
7-M-2
Principal Distribution Amount, until the Class Certificate
Balance
thereof has been reduced to zero;
fourth, to the Class 7-M-3 Certificates, up to the Class
7-M-3
Principal Distribution Amount, until the Class Certificate
Balance
thereof has been reduced to zero; and
fifth, any remaining Group 7 Principal Distribution Amount
will be distributed as part of the Monthly Excess Cashflow
Amount as
set forth in Section 5.03(c).
(c) Distributions of Monthly Excess Cashflow Amounts:
On each Distribution Date, any Monthly Excess Cashflow Amount
shall
be distributed, to the extent available, in the following order
of priority on
such Distribution Date:
(i) to pay any remaining Accrued Certificate Interest for
such
Distribution Date for the Class 7-A-1 Certificates;
(ii) to pay any Interest Carry Forward Amounts for such
Distribution Date for the Class 7-A-1 Certificates;
(iii) to pay any remaining unpaid Accrued Certificate
Interest
for such Distribution Date for the Class 7-M-1 Certificates;
(iv) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 7-M-1 Certificates;
(v) to pay any Class 7-M-1 Realized Loss Amortization Amount
for such Distribution Date;
(vi) to pay any remaining unpaid Accrued Certificate
Interest
for such Distribution Date for the Class 7-M-2 Certificates;
(vii) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 7-M-2 Certificates;
(viii) to pay any Class 7-M-2 Realized Loss Amortization
Amount for such Distribution Date;
(ix) to pay any remaining unpaid Accrued Certificate
Interest
for such Distribution Date for the Class 7-M-3 Certificates;
(x) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 7-M-3 Certificates;
(xi) to pay any Class 7-M-3 Realized Loss Amortization
Amount
for such Distribution Date;
(xii) sequentially, to the Class 7-A-1, Class 7-M-1, Class
7-M-2 and Class 7-M-3 Certificates, in that order, any Cap
Carryover
Amount for each such Class; and
(xiii) to pay to the Class 7-CE Certificates, up to the
Class
7-CE Distributable Amount for such Distribution Date.
On each Distribution Date, there shall be distributed to the
Holder
of the Class 7-LR Certificate, any remaining amount in the
Distribution Account
in respect of Loan Group 7 on such date after the application
pursuant to
Sections 5.03(a), 5.03(b) and 5.03(c)(i)-(xiii).
(d) Any amounts distributed to the Offered Group 7 Certificates
in
respect of interest pursuant to Section 5.03(c)(xii) which
constitute Cap
Carryover Amounts shall first be deemed distributed by as a
distribution to the
Class 7-CE Certificates, and then distributed to the Group 7
Certificates from
the Grantor Trust as payments on notional principal contracts in
the nature of
cap contracts. Any remaining amount with respect to the Class
7-CE Certificates
or any remaining Yield Maintenance Agreement Payment shall be
treated as having
been distributed to the Holders of the Class 7-CE Certificates
from the Grantor
Trust.
(e) On each Distribution Date, Unpaid Realized Loss Amounts on
the
Offered Group 7 Certificates will be reduced by the amount of
any Recoveries
relating to the Group 7 Mortgage Loans received during the prior
calendar month
in the same order as Realized Loss Amortization Amounts are paid
to the Offered
Group 7 Certificates pursuant to Section 5.03(c) above.
(f) Notwithstanding any other provision of this Section 5.03,
no
Class Certificate Balance of a Class of Group 7 Certificates
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.
Section 5.04 Allocation of Losses for the Shifting Interest
Certificates; Allocation of Net Negative Amortization. (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 on the
Mortgage Loans
in each Loan Group. Based on such information, the Securities
Administrator
shall determine the total amount of Realized Losses on the
Mortgage Loans in
each Loan Group with respect to the related Distribution Date.
Realized Losses
shall be allocated to the Certificates by a reduction in the
Class Certificate
Balances of the designated Classes pursuant to Section 5.04(b)
below.
The Class Certificate Balance of the Class CB Certificates
then
outstanding with the highest numerical Class designation shall
be reduced or
increased on each Distribution Date by the amount, if any,
necessary such that
the aggregate of the Class Certificate Balances of all
outstanding Classes of
Group 1 Senior Certificates, Group 2 Senior Certificates and
Class CB
Certificates (after giving effect to the amount to be
distributed as a
distribution of principal on such Distribution Date) equals the
sum of the
Adjusted Pool Amounts for Loan Group 1 and Loan Group 2 for such
Distribution
Date.
The Class Certificate Balance of the Class DB Certificates
then
outstanding with the highest numerical Class designation shall
be reduced or
increased on each Distribution Date by the amount, if any,
necessary such that
the aggregate of the Class Certificate Balances of all
outstanding Classes of
Group 3 Senior Certificates, Group 4 Senior Certificates, Group
5 Senior
Certificates and Class CB Certificates (after giving effect to
the amount to be
distributed as a distribution of principal on such Distribution
Date) equals the
sum of the Adjusted Pool Amounts for Loan Group 3, Loan Group 4
and Loan Group 5
for such Distribution Date.
The Class Certificate Balance of the Class 6-B Certificates
then
outstanding with the highest numerical Class designation shall
be reduced or
increased on each Distribution Date by the amount, if any,
necessary such that
the aggregate of the Class Certificate Balances of all
outstanding Classes of
Group 6 Senior Certificates and Class 6-B Certificates (after
giving effect to
the amount to be distributed as a distribution of principal on
such Distribution
Date) equals the Adjusted Pool Amount for Loan Group 6 for such
Distribution
Date.
After the applicable Senior Credit Support Depletion Date, the
Class
Certificate Balances of the Senior Certificates of each Shifting
Interest Group
in the aggregate shall be reduced or increased on each
Distribution Date by the
amount, if any, necessary such that the aggregate of the Class
Certificate
Balances of all outstanding Classes of Senior Certificates of
such Shifting
Interest Group (after giving effect to the amount to be
distributed as a
distribution of principal on such Distribution Date) equals the
Adjusted Pool
Amount for the Related Loan Group for such Distribution
Date.
Any such reduction or increase shall be allocated among the
Senior
Certificates of such Shifting Interest Group, based on the Class
Certificate
Balances immediately prior to such Distribution Date until the
Class Certificate
Balances thereof have been reduced to zero. (b) Any reduction or
increase in the
Class Certificate Balance of a Class of Certificates pursuant to
Section 5.04(a)
above shall be allocated among the Certificates of such Class in
proportion to
their respective Percentage Interests.
(c) The calculation of the amount to be distributed as principal
to
any Class of Class CB Certificates, Class DB Certificates or
Class 6-B
Certificates with respect to a Distribution Date (the
"Calculated Principal
Distribution") shall be made prior to the allocation of any
Realized Losses on
the Shifting Interest Certificates for such Distribution Date;
provided,
however, the actual payment of principal to the Classes of Class
CB
Certificates, Class DB Certificates or Class 6-B 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 Class CB
Certificates,
Class DB Certificates or Class 6-B Certificates is greater than
the Class
Certificate Balance of such Class, the excess shall be
distributed first,
sequentially, to the Classes of Class CB Certificates, Class DB
Certificates or
Class 6-B Certificates, as the case may be, then outstanding
(beginning with the
Class of Class CB Certificates, Class DB Certificates or Class
6-B Certificates,
as the case may be, 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 Group 1 Senior Certificates and Group 2
Senior
Certificates, in the case of the Class CB Certificates, pro
rata, in accordance
with the priorities set forth in Section 5.02, the Group 3
Senior Certificates,
Group 4 Senior Certificates and Group 5 Senior Certificates, in
the case of
Class DB Certificates, pro rata, in accordance with the
priorities set forth in
Section 5.02, or the Group 6 Senior Certificates, in the case of
the Class 6-B
Certificates, pro rata, in accordance with the priorities set
forth in Section
5.02.
(d) With respect to any Distribution Date, Realized Losses
allocated
pursuant to this Section 5.04 will be allocated to each
Uncertificated
Lower-Tier Interest as described in Section 5.11(a).
(e) 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 5.04 will be allocated
to each
Uncertificated Middle-Tier Interest in an amount equal to the
amount allocated
to its respective Corresponding Upper-Tier Class or Classes as
provided in
Section 5.11(a).
(f) With respect to any Distribution Date, the interest portion
of
Realized Losses allocated pursuant to this Section 5.04 will be
allocated to
each Uncertificated Middle-Tier Interest in the same relative
proportions as
interest is allocated to such Uncertificated Middle-Tier
Interest.
(g) Notwithstanding any other provision of this Section 5.04,
no
Class Certificate Balance of a Shifting Interest 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
plus, in the case of the Class 6-A-1 Certificates and the Class
6-B
Certificates, any Net Negative Amortization previously allocated
thereto.
(h) Any Net Negative Amortization for Loan Group 6 for a
Distribution Date will be allocated to increase the Class
Certificate Balances
of the Group 6 Certificates, pro rata, based on their respective
Class
Certificate Balances.
Section 5.05 Allocation of Losses for the Group 7
Certificates.
Any Applied Realized Loss Amount for a Distribution Date will
be
allocated in reduction of the Class Certificate Balances of the
Class 7-M-3,
Class 7-M-2 and Class 7-M-1 Certificates, in that order and
until the respective
Class Certificate Balances thereof are reduced to zero. Section
5.06 Statements
to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon
the
information provided to the Securities Administrator on the
Master Servicer's
Certificate delivered to the Securities Administrator pursuant
to Section 4.01,
the Securities Administrator shall determine the following
information with
respect to such Distribution Date:
(i)for each Group, the amount allocable to principal,
separately
identifying the aggregate amount of any Principal Prepayments
and
Liquidation Proceeds included therein;
(ii) for each Loan Group, the amount allocable to interest,
the
Class 7-CE Distributable Amount, any Class Unpaid Interest
Shortfall
included in such distribution and any remaining Class Unpaid
Interest
Shortfall after giving effect to such distribution;
(iii) with respect to the Shifting Interest Certificates, 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) for Loan Group 7, the Overcollateralization Amount, the
Overcollateralization Release Amount, the Overcollateralization
Deficiency
and the Targeted Overcollateralization Amount as of such
Distribution Date
and the Monthly Excess Interest Amount and Monthly Excess
Cashflow Amount
for such Distribution Date;
(vi) for each Loan Group, the Pool Stated Principal Balance for
the
following Distribution Date;
(vii) with respect to each Shifting Interest Loan Group, the
Senior
Percentage for each Loan Group, and the Subordinate Percentage
for the
following Distribution Date, the CB Crossed Loan Group Senior
Percentage,
the CB Crossed Loan Group Subordinate Percentage, the DB Crossed
Loan
Group Senior Percentage and the DB Crossed Loan Group
Subordinate
Percentage for the following Distribution Date;
(viii) the amount of the Servicing Fee paid to or retained by
each
Servicer with respect to each Loan Group and such Distribution
Date;
(ix) the Pass-Through Rate for each such Class of Certificates
with
respect to such Distribution Date;
(x)for each Loan Group, the amount of Periodic Advances included
in
the distribution on such Distribution Date and the aggregate
amount of
Periodic Advances outstanding as of the close of business on
such
Distribution Date;
(xi) for each Loan Group, the number and aggregate principal
amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans
in
foreclosure or in 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) for each Loan Group, with respect to any Mortgage Loan
that
became an REO Property during the preceding calendar month, the
loan
number and Stated Principal Balance of such Mortgage Loan as of
the close
of business on the Determination Date preceding such
Distribution Date and
the date of acquisition thereof;
(xiii) for each Loan Group, the total number and principal
balance
of any REO Properties (and market value, if available) as of the
close of
business on the Determination Date preceding such Distribution
Date;
(xiv) for each Shifting Interest Loan Group, the Senior
Prepayment
Percentage and the Subordinate Prepayment Percentage for the
following
Distribution Date;
(xv) the Notional Amount for each Class of Interest-Only
Certificate
for such Distribution Date;
(xvi) the Accrued Certificate Interest in respect of each Class
of
Group 7 Certificates for such Distribution Date and any related
Cap
Carryover Amounts, and the respective portions thereof, if any,
remaining
unpaid following the distributions made in respect of such
Certificates on
such Distribution Date;
(xvii) with respect to Loan Group 7, the Cap Carryover
Amounts
distributed on such Distribution Date, the amounts remaining
after giving
effect to distributions thereof on such Distribution Date, the
amount of
all Cap Carryover Amounts covered by withdrawals from the
Reserve Account
on such Distribution Date;
(xviii) whether a Trigger Event has occurred and is continuing,
and
the cumulative Realized Losses, as a percentage of the original
Pool
Stated Principal Balance of Loan Group 7;
(xix) the Available Funds;
(xx) for each Loan Group, the aggregate amount of Realized
Losses or
Applied Realized Loss Amounts, as applicable, incurred during
the
preceding calendar month and for each Group for such
Distribution Date
separately identifying any reduction thereof due to the
allocations of
Realized Losses or Applied Realized Loss Amounts; and
(xxi) for each Loan Group, the amount of Recoveries.
(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 5.06(a).
In the case of information furnished pursuant to clauses (i)
and
(ii) of Section 5.06(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 make available 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 5.06(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 5.06(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 5.07 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 for each
REMIC a taxpayer identification number on Form SS-4 or as
otherwise permitted by
the Internal Revenue Service, and shall furnish or cause to be
furnished to the
Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or
the Treasury Regulations, the name, title, address and telephone
number of the
person that Holders of the Certificates may contact for tax
information relating
thereto, together with such additional information at the time
or times and in
the manner required by the Code or the Treasury Regulations.
Such federal,
state, or local income tax or information returns shall be
signed by the
Trustee, or such other Person as may be required to sign such
returns by the
Code, the Treasury Regulations or state or local tax laws,
regulations, or
rules.
(c) In the first federal income tax return of each REMIC for
its
short taxable year ending December 31, 2004, REMIC status shall
be elected for
each REMIC for such taxable year and all succeeding taxable
years.
(d) The Securities Administrator will maintain or cause to
be
maintained such records relating to each REMIC, including but
not limited to
records relating to the income, expenses, assets and liabilities
of the Trust
Estate, and the initial fair market value and adjusted basis of
the Trust Estate
property and assets determined at such intervals as may be
required by the Code
or the Treasury Regulations, as may be necessary to prepare the
foregoing
returns, schedules, statements or information.
Section 5.08 Tax Matters Person. The Tax Matters Person shall
have
the same duties with respect to each REMIC as those of a "tax
matters partner"
under Subchapter C of Chapter 63 of Subtitle F of the Code. The
Holder of the
Class 3-A-R Certificate is hereby designated as the Tax Matters
Person for the
Upper-Tier REMIC. The Holder of the Class 3-A-LR Certificate is
hereby
designated as the Tax Matters Person for the Lower-Tier REMIC.
The Holder of the
Class 3-A-MR Certificate is hereby designated as the Tax Matters
Person for the
Middle-Tier REMIC. The Holder of the Class 7-R Certificate is
hereby designated
as the Tax Matters Person for the Group 7 Upper-Tier REMIC. The
Holder of the
Class 7-LR Certificate is hereby designated as the Tax Matters
Person for the
Group 7 Lower-Tier REMIC. By their acceptance of the applicable
Residual
Certificate, each such Holder irrevocably appoints the
Securities Administrator
as its agent to perform all of the duties of the Tax Matters
Person for the
related REMIC.
Section 5.09 Rights of the Tax Matters Person in Respect of
the
Securities Administrator. The Securities Administrator shall
afford the Tax
Matters Person, upon reasonable notice during normal business
hours, access to
all records maintained by the Securities Administrator in
respect of its duties
hereunder and access to officers of the Securities Administrator
responsible for
performing such duties. Upon request, the Securities
Administrator shall furnish
the Tax Matters Person with its most recent report of condition
published
pursuant to law or to the requirements of its supervisory or
examining authority
publicly available. The Securities Administrator shall make
available to the Tax
Matters Person such books, documents or records relating to the
Securities
Administrator's services hereunder as the Tax Matters Person
shall reasonably
request. The Tax Matters Person shall not have any
responsibility or liability
for any action or failure to act by the Securities Administrator
and is not
obligated to supervise the performance of the Securities
Administrator under
this Agreement or otherwise.
Section 5.10 REMIC Related Covenants. For as long as the Trust
shall
exist, the Trustee, the Securities Administrator, the Depositor
and each
Servicer shall act in accordance herewith to assure continuing
treatment of the
each REMIC as a REMIC and avoid the imposition of tax on each
REMIC created
hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee
shall
create, or permit the creation of, any "interests" in any REMIC
within the
meaning of Code Section 860D(a)(2) other than the interests
represented by the
Regular Certificates, the Residual Certificates and the
Uncertificated
Lower-Tier Interests, the Uncertificated Middle-Tier Interests
and the
Uncertificated Group 7 Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor
and
the Master Servicer shall not contribute to the Trust Estate and
the Trustee
shall not accept property unless substantially all of the
property held in each
REMIC constitutes either "qualified mortgages" or "permitted
investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and
(ii) no property
shall be contributed to any REMIC after the start-up day unless
such
contribution would not subject the Trust Estate to the 100% tax
on contributions
to a REMIC after the start-up day of the REMIC imposed by Code
Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee,
shall
not accept on behalf of any REMIC any fee or other compensation
for services and
none of the Securities Administrator, the Trustee or the Master
Servicer shall
knowingly accept, on behalf of the Trust Estate any income from
assets other
than those permitted to be held by a REMIC.
(d) Neither the Securities Administrator, on behalf of the
Trustee,
nor the Trustee shall sell or permit the sale of all or any
portion of the
Mortgage Loans (other than in accordance with Sections 2.02 or
3.16(b)), unless
such sale is pursuant to a "qualified liquidation" of the
applicable REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with
Article X.
(e) The Securities Administrator shall maintain books with
respect
to the Trust and each REMIC on a calendar year taxable year and
on an accrual
basis.
None of the Master Servicers, the Securities Administrator or
the
Trustee shall engage in a "prohibited transaction" (as defined
in Code Section
860F(a)(2)), except that, with the prior written consent of the
Master Servicer
and the Depositor, the Securities Administrator may engage in
the activities
otherwise prohibited by the foregoing paragraphs (b), (c) and
(d); provided that
the Master Servicer shall have delivered to the Securities
Administrator an
Opinion of Counsel to the effect that such transaction will not
result in the
imposition of a tax on any REMIC created hereunder and will not
disqualify any
REMIC from treatment as a REMIC; and, provided further, that the
Master Servicer
shall have demonstrated to the satisfaction of the Securities
Administrator that
such action will not adversely affect the rights of the Holders
of the
Certificates and the Securities Administrator and that such
action will not
adversely impact the rating of the Certificates.
Section 5.11 REMIC Distributions.
(a) On each Distribution Date, interest shall be distributed
in
respect of each Uncertificated Lower-Tier Interest at the
pass-through rate
thereon, as described below. On each Distribution Date, all
distributions of
principal shall be made first, to the Class 1-LS Interest, Class
2-LS Interest,
Class 3-LS Interest, Class 4-LS Interest and Class 5-LS
Interest, so as to keep
the principal balances thereof (computed to eight decimal
places) equal to 0.1%
of the Group Subordinate Amount for Loan Group 1, Loan Group 2,
Loan Group 3,
Loan Group 4 and Loan Group 5, respectively (except that if any
such amount is
greater than on the preceding Distribution Date, the least
amount of principal
shall be distributed to the Class 1-LS Interest, Class 2-LS
Interest, Class 3-LS
Interest, Class 4-LS Interest and Class 5-LS Interest, such that
the Class CB
Subordinate Balance Ratio and the Class DB Subordinate Balance
Ratio are
maintained); and second, any remaining principal to the Class
1-L Interest,
Class 2-L Interest, Class 3-L Interest, Class 4-L Interest,
Class 5-L Interest
and Class 6-L Interest. Any distributions of principal made to
the
Uncertificated Lower-Tier Interests pursuant to this paragraph
shall be made (a)
from the Group 1 Mortgage Loans to the Uncertificated Lower-Tier
Interests
beginning with the numeral "1", (b) from the Group 2 Mortgage
Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral
"2," (c) from the
Group 3 Mortgage Loans to the Uncertificated Lower-Tier
Interests beginning with
the numeral "3," (d) from the Group 4 Mortgage Loans to the
Uncertificated
Lower-Tier Interests beginning with the numeral "4," (e) from
the Group 5
Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with the
numeral "5" and (f) from the Group 6 Mortgage Loans to the
Uncertificated
Lower-Tier Interests beginning with the numeral "6."
Realized Losses shall be applied after all distributions have
been
made on each Distribution Date first, to the Class 1-LS
Interest, the Class 2-LS
Interest, Class 3-LS Interest, Class 4-LS Interest and Class
5-LS Interest, so
as to keep their principal balances (computed to eight decimal
places) equal to
0.1% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2, Loan Group
3, Loan Group 4 and Loan Group 5, respectively (except that if
any such amount
is greater than on the preceding Distribution Date, the least
amount of Realized
Losses shall be allocated to the Class 1-LS Interest, Class 2-LS
Interest, Class
3-LS Interest, Class 4-LS Interest and Class 5-LS Interest, such
that the Class
CB Subordinate Balance Ratio and the Class DB Subordinate
Balance Ratio are
maintained); and second, the remaining Realized Losses shall be
allocated to the
Class 1-L Interest, Class 2-L Interest, Class 3-L Interest,
Class 4-L Interest,
Class 5-L Interest and Class 6-L Interest. Any Realized Losses
allocated to the
Uncertificated Lower-Tier Interests pursuant to this paragraph
shall be (a) from
Realized Losses allocated to Loan Group 1 in the case of
Uncertificated
Lower-Tier Interests beginning with the numeral "1," (b) from
Realized Losses
allocated to Loan Group 2 in the case of Uncertificated
Lower-Tier Interests
beginning with the numeral "2," (c) from Realized Losses
allocated to Loan Group
3 in the case of Uncertificated Lower-Tier Interests beginning
with the numeral
"3," (d) from Realized Losses allocated to Loan Group 4 in the
case of
Uncertificated Lower-Tier Interests beginning with the numeral
"4," (e) from
Realized Losses allocated to Loan Group 5 in the case of
Uncertificated
Lower-Tier Interests beginning with the numeral "5" and (f) from
the Group 6
Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with the
numeral "6."
Recoveries and Reimbursement Amounts shall be applied to the
Uncertificated Lower-Tier Interests in a manner analogous to the
application of
Realized Losses to the Uncertificated Lower-Tier Interests.
As of any date, the aggregate principal balance of the Class
1-L
Interest and the Class 1-LS Interest shall equal the aggregate
Stated Principal
Balance of the Group 1 Mortgage Loans. As of any date, the
aggregate principal
balance of the Class 2-L Interest and the Class 2-LS Interest
shall equal the
aggregate Stated Principal Balance of the Group 2 Mortgage
Loans. As of any
date, the aggregate principal balance of the Class 3-L Interest
and the Class
3-LS Interest shall equal the aggregate Stated Principal Balance
of the Group 3
Mortgage Loans minus the Class Certificate Balance of the Class
3-A-LR
Certificate. As of any date, the aggregate principal balance of
the Class 4-L
Interest and the Class 4-LS Interest shall equal the aggregate
Stated Principal
Balance of the Group 4 Mortgage Loans minus the Class
Certificate Balance of the
Class 3-A-LR Certificate. As of any date, the aggregate
principal balance of the
Class 5-L Interest and the Class 5-LS Interest shall equal the
aggregate Stated
Principal Balance of the Group 5 Mortgage Loans. As of any date,
the principal
balance of the Class 6-L Interest shall equal the aggregate
Stated Principal
Balance of the Group 6 Mortgage Loans.
The pass-through rate with respect to the Class 1-L Interest and
the
Class 1-LS Interest shall be
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