EXHIBIT 4
==============================================================================
BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor,
BANK OF AMERICA, N.A.,
as Servicer,
and
WELLS FARGO BANK, N.A.,
as
Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
_______________________
Mortgage Pass-Through Certificates
Series 2004-11
==============================================================================
<PAGE>
TABLE OF CONTENTS
Page
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 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 SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer
to Service Mortgage Loans...........................
Section 3.02
Subservicing; Enforcement of the Obligations of Servicer.....
Section 3.03 Fidelity
Bond; Errors and Omissions Insurance................
Section 3.04 Access to
Certain Documentation..............................
Section 3.05
Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments...................
Section 3.06 Rights of
the Depositor and the Trustee in Respect of the
Servicer....................................................
Section 3.07 Trustee
to Act as Servicer...................................
Section 3.08
Collection of Mortgage Loan Payments; Servicer Custodial
Account; and Certificate Account............................
Section 3.09
Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.10 Access to
Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted
Withdrawals from the Servicer Custodial Account
and Certificate Account.....................................
Section 3.12
Maintenance of Hazard Insurance..............................
Section 3.13
Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.14
Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.15 Trustee
to Cooperate; Release of Mortgage Files..............
Section 3.16
Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.........................
Section 3.17 Servicing
Compensation.......................................
Section 3.18 Annual
Statement as to Compliance............................
Section 3.19 Annual
Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.20
Advances.....................................................
Section 3.21
Modifications, Waivers, Amendments and Consents..............
Section 3.22 Reports
to the Securities and Exchange Commission............
Section 3.23 Buy-Down
Account; Application of Buy-Down Funds..............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01
Servicer's Certificate.......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02
Priorities of Distributions..................................
Section 5.03
Allocation of Losses.........................................
Section 5.04
Statements to Certificateholders.............................
Section 5.05 Tax
Returns and Reports to Certificateholders................
Section 5.06 Tax
Matters Person...........................................
Section 5.07 Rights of
the Tax Matters Person in Respect of the Trustee...
Section 5.08 REMIC
Related Covenants......................................
Section 5.09
Determination of LIBOR.......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02
Registration of Transfer and Exchange of Certificates........
Section 6.03
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons
Deemed Owners........................................
ARTICLE VII
THE
DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the
Servicer......
Section 7.02 Merger or Consolidation of the Depositor or the
Servicer......
Section 7.03 Limitation on Liability of the Depositor, the
Servicer
and Others..................................................
Section 7.04 Depositor
and 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
Section 9.01 Duties of
Trustee............................................
Section 9.02 Certain
Matters Affecting the Trustee........................
Section 9.03 Trustee
Not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee
May Own Certificates.................................
Section 9.05
Eligibility Requirements for Trustee.........................
Section 9.06
Resignation and Removal of Trustee...........................
Section 9.07 Successor
Trustee............................................
Section 9.08 Merger or
Consolidation of Trustee...........................
Section 9.09
Appointment of Co-Trustee or Separate Trustee................
Section 9.10
Authenticating Agents........................................
Section 9.11 Trustee's
Fees and Expenses..................................
Section 9.12
Appointment of Custodian.....................................
Section 9.13 Paying
Agents................................................
Section 9.14
Limitation of Liability......................................
Section 9.15 Trustee
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 by the Depositor 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.....................................
Section 11.03 Limitation on Rights of
Certificateholders...................
Section 11.04 Governing
Law................................................
Section 11.05
Notices......................................................
Section 11.06 Severability of
Provisions...................................
Section 11.07 Certificates Nonassessable and Fully
Paid....................
Section 11.08 Access to List of
Certificateholders.........................
Section 11.09
Recharacterization...........................................
<PAGE>
EXHIBITS
Exhibit A-1-A-1...- Form of Face of
Class 1-A-1 Certificate
Exhibit A-1-A-2...- Form of Face of Class 1-A-2
Certificate
Exhibit A-1-A-3...- Form of Face of
Class 1-A-3 Certificate
Exhibit A-1-A-4...- Form of Face of
Class 1-A-4 Certificate
Exhibit A-1-A-5...- Form of Face of
Class 1-A-5 Certificate
Exhibit A-1-A-6...- Form of Face of Class 1-A-6
Certificate
Exhibit A-1-A-7...- Form of Face of
Class 1-A-7 Certificate
Exhibit A-1-A-8...- Form of Face of
Class 1-A-8 Certificate
Exhibit A-1-A-9...- Form of Face of
Class 1-A-9 Certificate
Exhibit A-1-A-10..- Form of Face of Class 1-A-10
Certificate
Exhibit A-1-A-11..- Form of Face of
Class 1-A-11 Certificate
Exhibit A-1-A-12..- Form of Face of
Class 1-A-12 Certificate
Exhibit A-1-A-13..- Form of Face of
Class 1-A-13 Certificate
Exhibit A-1-A-14..- Form of Face of
Class 1-A-14 Certificate
Exhibit A-1-A-15..- Form of Face of
Class 1-A-15 Certificate
Exhibit A-1-A-16..- Form of Face of
Class 1-A-16 Certificate
Exhibit A-1-A-R...- Form of Face of
Class 1-A-R Certificate
Exhibit A-1-A-MR..- Form of Face of
Class 1-A-MR Certificate
Exhibit A-1-A-LR..- Form of Face of
Class 1-A-LR 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-30-IO...- Form of Face of
Class 30-IO Certificate
Exhibit A-3-A-1...- Form of Face of
Class 3-A-1 Certificate
Exhibit A-20-IO...- Form of Face of
Class 20-IO Certificate
Exhibit A-4-A-1...- Form of Face of
Class 4-A-1 Certificate
Exhibit A-15-PO...- Form of Face of
Class 15-PO Certificate
Exhibit A-15-IO...- Form of Face of
Class 15-IO Certificate
Exhibit A-5-A-1...- Form of Face of
Class 5-A-1 Certificate
Exhibit A-5-PO....- Form of Face of
Class 5-PO Certificate
Exhibit A-5-IO....- Form of Face of
Class 5-IO Certificate
Exhibit A-X-PO....- Form of Face of
Class X-PO Certificate
Exhibit B-X-B-1...- Form of Face of
Class X-B-1 Certificate
Exhibit B-X-B-2...- Form of Face of
Class X-B-2 Certificate
Exhibit B-X-B-3...- Form of Face of
Class X-B-3 Certificate
Exhibit B-X-B-4...- Form of Face of
Class X-B-4 Certificate
Exhibit B-X-B-5...- Form of Face of
Class X-B-5 Certificate
Exhibit B-X-B-6...- Form of Face of
Class X-B-6 Certificate
Exhibit B-2-B-1...- Form of Face of
Class 2-B-1 Certificate
Exhibit B-2-B-2...- Form of Face of
Class 2-B-2 Certificate
Exhibit B-2-B-3...- Form of Face of
Class 2-B-3 Certificate
Exhibit B-2-B-4...- Form of Face of
Class 2-B-4 Certificate
Exhibit B-2-B-5...- Form of Face of
Class 2-B-5 Certificate
Exhibit B-2-B-6...- Form of Face of
Class 2-B-6 Certificate
Exhibit B-5-B-1...- Form of Face of
Class 5-B-1 Certificate
Exhibit B-5-B-2...- Form of Face of
Class 5-B-2 Certificate
Exhibit B-5-B-3...- Form of Face of
Class 5-B-3 Certificate
Exhibit B-5-B-4...- Form of Face of
Class 5-B-4 Certificate
Exhibit B-5-B-5...- Form of Face of
Class 5-B-5 Certificate
Exhibit B-5-B-6...- Form of Face of
Class 5-B-6 Certificate
Exhibit C Form of
Reverse of all Certificates.........................
Exhibit D-1 Mortgage Loan Schedule
(Loan Group 1).......................
Exhibit D-2 Mortgage Loan Schedule
(Loan Group 2).......................
Exhibit D-3 Mortgage Loan Schedule
(Loan Group 3).......................
Exhibit D-4 Mortgage Loan Schedule
(Loan Group 4).......................
Exhibit D-5 Mortgage Loan Schedule
(Loan Group 5).......................
Exhibit E Request
for Release of Documents............................
Exhibit F Form of
Certification of Establishment of Account...........
Exhibit G-1 Form of Transferor's
Certificate............................
Exhibit G-2A
Form 1 of Transferee's Certificate..........................
Exhibit G-2B
Form 2 of Transferee's Certificate..........................
Exhibit H Form of
Transferee Representation Letter
for ERISA Restricted Certificates...........................
Exhibit I Form of
Affidavit Regarding Transfer of Residual
Certificates................................................
Exhibit J Contents
of Servicing File..................................
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
Trustee's Certification.............................
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2004,
is
hereby executed by and among BANC OF AMERICA MORTGAGE SECURITIES,
INC., as
depositor (together with its permitted successors and assigns, the
"Depositor"),
BANK OF AMERICA, N.A., as servicer (together with its permitted
successors and
assigns, the "Servicer"), and WELLS FARGO BANK, N.A., 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 Servicer and the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the Trust. The Trust Estate
for federal
income tax purposes will be treated as three separate real estate
mortgage
investment conduits (the "Upper-Tier REMIC," the "Middle-Tier
REMIC" and the
"Lower-Tier REMIC," respectively, and each, a "REMIC"). The Class A
Certificates
(other than the Class 1-A-R, Class 1-A-MR, Class 1-A-LR, Class X-PO
and Class
30-IO Certificates) and the Class X-B, Class 2-B and Class 5-B
Certificates are
referred to collectively as the "Regular Certificates" and shall
constitute
"regular interests" in the Upper-Tier REMIC. The Class 1-X-PO
Component, Class
2-X-PO Component, Class 3-X-PO Component, Class 1-30-IO Component
and Class
2-30-IO Component (collectively, the "Components") shall also
constitute
"regular interests" in the 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 Class 1-A-R Certificate shall be the
"residual
interest" in the Upper-Tier REMIC, the Class 1-A-MR Certificate
shall be the
"residual interest" in the Middle-Tier REMIC and the Class 1-A-LR
Certificate
shall be the "residual interest" in the Lower-Tier REMIC. The
Certificates, the
Uncertificated Lower-Tier Interests and the Uncertificated
Middle-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
and the Components, together with the minimum denominations and
integral
multiples in excess thereof in which the Classes of Certificates
shall be
issuable:
Initial Class
Integral
Certificate
Pass-
Multiples
Balance or
Through Minimum
in Excess
Classes
Notional Amount Rate
Denomination of Minimum
------------
--------------- ------
------------ ----------
Class 1-A-1
$19,758,000.00
5.500% $1,000
$1
Class 1-A-2
$241,000.00
5.500% $1,000
$1
Class 1-A-3
$147,466,000.00
5.500% $1,000
$1
Class 1-A-4
$8,536,000.00
5.250% $1,000
$1
Class 1-A-5
$3,000,000.00
5.500% $1,000
$1
Class 1-A-6
$3,000,000.00
5.500% $1,000
$1
Class 1-A-7
$4,000,000.00
5.500% $1,000
$1
Class 1-A-8
$7,000,000.00
5.500% $1,000
$1
Class 1-A-9
$388,000.00
5.500% $388,000
N/A
Class 1-A-10
$24,486,000.00
5.250% $1,000
$1
Class 1-A-11
$16,100,000.00
5.500% $1,000
$1
Class 1-A-12
$1,113,000.00
5.500% $1,000,000
$1
Class 1-A-13
$100,000,000.00
5.250% $1,000
$1
Class 1-A-14
$10,000,000.00
(1)
$1,000
$1
Class 1-A-15
$10,000,000.00
(2)
$1,000,000
$1
Class 1-A-16
$197,000.00
5.500% $1,000
$1
Class 1-A-R
$50.00
5.500% $50
N/A
Class 1-A-MR
$25.00
5.500% $25
N/A
Class 1-A-LR
$25.00
5.500% $25
N/A
Class 2-A-1
$119,688,000.00
5.750% $1,000
$1
Class 2-A-2
$2,439,000.00
5.750% $1,000
$1
Class 30-IO
(3)
(3)
$1,000,000
$1
Class 3-A-1
$16,659,000.00
5.750% $1,000
$1
Class 20-IO
$270,644.00
5.750% $270,644
N/A
Class 4-A-1
$55,446,000.00
5.000% $1,000
$1
Class 15-IO
$1,599,470.00 5.000% $1,000,000
$1
Class 15-PO
$202,734.00
(4)
$25,000
$1
Class 5-A-1
$78,068,000.00
6.500% $1,000
$1
Class 5-IO
$980,096.00
6.500% $980,096
N/A
Class 5-PO
$1,486,003.00
(4)
$25,000
$1
Class X-PO
(5)
(5)
$25,000
$1
Class X-B-1
$7,311,000.00
(6)
$25,000
$1
Class X-B-2
$1,935,000.00
(6)
$25,000
$1
Class X-B-3
$1,290,000.00
(6)
$25,000
$1
Class X-B-4
$645,000.00
(6)
$25,000
$1
Class X-B-5
$645,000.00
(6)
$25,000
$1
Class X-B-6
$644,967.00
(6)
$25,000
$1
Class 2-B-1
$2,054,000.00
5.750% $25,000
$1
Class 2-B-2
$707,000.00
5.750% $25,000
$1
Class 2-B-3
$449,000.00
5.750% $25,000
$1
Class 2-B-4
$321,000.00
5.750% $25,000
$1
Class 2-B-5
$257,000.00
5.750% $25,000
$1
Class 2-B-6
$192,707.00
5.750% $25,000
$1
Class 5-B-1
$1,391,000.00
6.500% $25,000
$1
Class 5-B-2
$327,000.00
6.500% $25,000
$1
Class 5-B-3
$205,000.00
6.500% $25,000
$1
Class 5-B-4
$123,000.00
6.500% $25,000
$1
Class 5-B-5
$163,000.00
6.500% $25,000
$1
Class 5-B-6
$82,730.00
6.500% $25,000
$1
Initial Component
Integral
Balance or
Pass-
Multiples
Component
Through Minimum
in Excess
Components
Notional Amount Rate
Denomination of Minimum
------------
--------------- ------
------------ ----------
Class 1-X-PO
$1,257,841.00
(7)
N/A
N/A
Class 2-X-PO
$2,274,830.00
(7)
N/A
N/A
Class 3-X-PO
$151,890.00
(7)
N/A
N/A
Class 1-30-IO
$8,839,580.00
5.500% N/A
N/A
Class 2-30-IO
$1,487,846.00
5.500% N/A
N/A
(1) During
the initial Interest Accrual Period, interest will accrue on
the Class 1-A-14 Certificates at the rate of 2.810% per annum.
During each
Interest Accrual Period thereafter, interest will accrue on the
Class 1-A-14
Certificates at a per annum rate equal to (i) 0.400% plus (ii)
LIBOR, subject to
a minimum rate of 0.400% and a maximum rate of 8.000%.
(2) During
the initial Interest Accrual Period, interest will accrue on
the Class 1-A-15 Certificates at the rate of 5.190% per annum.
During each
Interest Accrual Period thereafter, interest will accrue on the
Class 1-A-15
Certificates at a per annum rate equal to (i) 7.600% minus (ii)
LIBOR, subject
to a minimum rate of 0.000% and a maximum rate of 7.600%.
(3) The
Class 30-IO Certificates will be deemed for purposes of the
distribution of interest to consist of two components described in
the table.
The Components are not severable.
(4) The
Class 15-PO and Class 5-PO Certificates are Principal Only
Certificates and will not be entitled to distributions of
interest.
(5) The
Class X-PO Certificates will be deemed for purposes of the
distribution of principal to consist of three components described
in the table.
The Components are not severable.
(6)
Interest will accrue on the Class X-B 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 (i) with
respect to Loan
Group 1, 5.500%, (ii) with respect to Loan Group 3, 5.750% and
(iii) with
respect to Loan Group 4, 5.000%.
(7) The
Class 1-X-PO and Class 3-X-PO Components will be principal-only
Components and will not bear interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the context otherwise requires,
shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accretion Termination Date: The earlier to occur of (A) the
Distribution Date following the Distribution Date on which the
Class Certificate
Balance of the Class 1-A-10 Certificates has been reduced to zero
or (B) the
Senior Credit Support Depletion Date for Group 1.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class (other than the Class 30-IO Certificates),
one month's
interest accrued during the related Interest Accrual Period at the
applicable
Pass-Through Rate on the applicable Class Certificate Balance or
Notional
Amount. For any Distribution Date and the Class 30-IO Certificates,
the sum of
the Accrued Component Interest for each Class 30-IO Component.
Accrued Component Interest: For any Distribution Date and each
Class
30-IO Component, one month's interest accrued during the related
Interest
Accrual Period at the applicable Pass-Through Rate on the
applicable Notional
Amount.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-off Date Pool Principal Balance of the Mortgage
Loans in such
Loan Group minus the sum of (i) all amounts in respect of principal
received in
respect of the Mortgage Loans in such Loan Group (including,
without limitation,
amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments,
Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to
Holders of the Certificates of the Related Group on such
Distribution Date and
all prior Distribution Dates and (ii) the principal portion of all
Realized
Losses (other than Debt Service Reductions) incurred on the
Mortgage Loans in
such Loan Group from the Cut-off Date through the end of the month
preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the difference between the
Adjusted Pool
Amount and the Adjusted Pool Amount (PO Portion).
Adjusted Pool Amount (PO Portion): With respect to any
Distribution
Date and Loan Group, the sum of the amounts, calculated as follows,
with respect
to all Outstanding Mortgage Loans of such Loan Group: the product
of (i) the PO
Percentage for each such Mortgage Loan and (ii) the remainder of
(A) the Cut-off
Date Principal Balance of such Mortgage Loan minus (B) the sum of
(x) all
amounts in respect of principal received in respect of such
Mortgage Loan
(including, without limitation, amounts received as Monthly
Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and
Substitution
Adjustment Amounts) and distributed to Holders of the Certificates
of the
Related Group on such Distribution Date and all prior Distribution
Dates and (y)
the principal portion of any Realized Loss (other than a Debt
Service Reduction)
incurred on such Mortgage Loan from the Cut-off Date through the
end of the
month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date
and
Loan Group, the total of the amounts held in the Servicer Custodial
Account at
the close of business on the preceding Determination Date on
account of (i)
Principal Prepayments and Liquidation Proceeds received or made on
the Mortgage
Loans in such Loan Group in the month of such Distribution Date and
(ii)
payments which represent receipt of Monthly Payments on the
Mortgage Loans in
such Loan Group in respect of a Due Date or Due Dates subsequent to
the related
Due Date.
Ancillary Income: All assumption fees, late payment charges and
all
other ancillary income and fees with respect to the Mortgage
Loans.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value determined in an appraisal
obtained by the
originator at origination of such Mortgage Loan 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 (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
Insurance Policy
in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument in recordable form,
sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property
is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
Bank of America: Bank of America, N.A., a national banking
association, or its successor in interest.
Book-Entry Certificate: Any Class of Certificates other than
the
Physical Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers
Protection Plan(R) addendum to the related Mortgage Note whereby
Bank of America
agrees to cancel (i) certain payments of principal and interest on
such Mortgage
Loan for up to twelve months upon the disability or involuntary
unemployment of
the Mortgagor or (ii) the outstanding principal balance of the
Mortgage Loan
upon the accidental death of the Mortgagor; provided that such
Borrowers
Protection Plan(R) has not been terminated in accordance with its
terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage
Loan,
the Monthly Covered Amount or Total Covered Amount, if any, payable
by Bank of
America pursuant to Section 5 of the Mortgage Loan Purchase
Agreement.
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 in which the servicing
offices of
the Servicer is located or the state in which the Corporate Trust
Office is
located are required or authorized by law or executive order to be
closed.
Buy-Down Account: The separate Eligible Account or Accounts
created
and maintained by the Servicer pursuant to Section 3.23.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's monthly payment during the
initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the monthly interest payments
made by the
related Mortgagor will be less than the scheduled monthly interest
payments on
such Mortgage Loan, with the resulting difference in interest
payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section
5.03(d).
Certificate: Any of the Banc of America Mortgage Securities,
Inc.,
Mortgage Pass-Through Certificates, Series 2004-11 that are issued
pursuant to
this Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Trustee pursuant to Section 3.08(c) in the name of the Trustee
for the
benefit of the Certificateholders and designated "Wells Fargo Bank,
N.A., in
trust for registered holders of Banc of America Mortgage
Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2004-11." The
Certificate Account
shall be deemed to consist of seven sub-accounts; one for each
Group, a sixth
sub-account referred to herein as the Upper-Tier Certificate
Sub-Account and a
seventh sub-account referred to herein as the Middle-Tier
Certificate
Sub-Account. Funds in the Certificate Account shall be held in
trust for the
Holders of the Certificates of such Group for the uses and purposes
set forth in
this Agreement.
Certificate Balance: With respect to any Certificate at any
date,
the maximum dollar amount of principal to which the Holder thereof
is then
entitled hereunder, such amount being equal to the product of the
Percentage
Interest of such Certificate and the Class Certificate Balance of
the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable to the Depository and
selected by the
Trustee.
Certificate Owner:
With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate.
With respect to
any Definitive Certificate, the Certificateholder of such
Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor, the 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 Trustee
shall not be responsible for knowing that any Certificate is
registered in the
name of such an affiliate unless one of its Responsible Officers
has actual
knowledge.
Certification: As defined in Section 3.22(b).
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class
1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13,
Class 1-A-14,
Class 1-A-15, Class 1-A-16, Class 1-A-R, Class 1-A-MR, Class
1-A-LR, Class
2-A-1, Class 2-A-2, Class 30-IO, Class 3-A-1, Class 20-IO, Class
4-A-1, Class
15-IO, Class 15-PO, Class 5-A-1, Class 5-IO, Class 5-PO, Class
X-PO, Class
X-B-1, Class X-B-2, Class X-B-3, Class X-B-4, Class X-B-5, Class
X-B-6, Class
2-B-1, Class 2-B-2, Class 2-B-3, Class 2-B-4, Class 2-B-5, Class
2-B-6, Class
5-B-1, Class 5-B-2, Class 5-B-3, Class 5-B-4, Class 5-B-5 and Class
5-B-6, as
the case may be.
Class 1-30-IO Notional Amount: As to any Distribution Date and
the
Class 1-30-IO Component, the product of (i) the aggregate Stated
Principal
Balance of the Group 1 Premium Mortgage Loans on the Due Date in
the month
preceding the month of such Distribution Date and (ii) a fraction,
(a) the
numerator of which is equal to the weighted average of the Net
Mortgage Interest
Rates of the Group 1 Premium Mortgage Loans (based on the Stated
Principal
Balances of the Group 1 Premium Mortgage Loans as of the Due Date
in the month
preceding the month of such Distribution Date) minus 5.500% and (b)
the
denominator of which is equal to 5.500%.
Class 1-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date for Group 1, the amount,
if any, by
which the Class Certificate Balance of the Class 1-A-1 Certificates
would be
reduced as a result of the allocation of any reduction pursuant to
Section
5.03(b) to such Class, without regard to the operation of Section
5.03(e).
Class 1-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date for Group 1,
the lesser of
(a) the Class Certificate Balance of the Class 1-A-2 Certificates
with respect
to such Distribution Date prior to any reduction for the Class
1-A-2 Loss
Allocation Amount and (b) the Class 1-A-1 Loss Amount with respect
to such
Distribution Date.
Class 1-A-9 Notional Amount: As to any Distribution Date and
the
Class 1-A-9 Certificates, 4.5454545455% of the Class Certificate
Balance of the
Class 1-A-4 Certificates.
Class 1-A-11 Accrual Distribution Amount: For any Distribution
Date
and the Class 1-A-11 Certificates prior to the Accretion
Termination Date, an
amount with respect to such Class equal to the sum of (i) the
amount allocated
but not currently distributable as interest to such Class pursuant
to Section
5.02(a)(ii) that is attributable to clause (i) of the definition of
"Interest
Distribution Amount," and (ii) the amount allocated but not
currently
distributable as interest to such Class pursuant to Section
5.02(a)(ii) that is
attributable to clause (ii) of the definition of "Interest
Distribution Amount."
Class 1-A-11 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group 1, the
amount, if any,
by which the Class Certificate Balance of the Class 1-A-11
Certificates would be
reduced as a result of the allocation of any reduction pursuant to
Section
5.03(b) to such Class, without regard to the operation of Section
5.03(e).
Class 1-A-12 Notional Amount: As to any Distribution Date and
the
Class 1-A-12 Certificates, 4.5454545455% of the Class Certificate
Balance of the
Class 1-A-10 Certificates.
Class 1-A-15 Notional Amount: As to any Distribution Date and
the
Class 1-A-15 Certificates, the Class Certificate Balance of the
Class 1-A-14
Certificates.
Class 1-A-16 Accrual Distribution Amount: For any Distribution
Date
and the Class 1-A-16 Certificates prior to the Accretion
Termination Date, an
amount with respect to such Class equal to the sum of (i) the
amount allocated
but not currently distributable as interest to such Class pursuant
to Section
5.02(a)(ii) that is attributable to clause (i) of the definition of
"Interest
Distribution Amount," and (ii) the amount allocated but not
currently
distributable as interest to such Class pursuant to Section
5.02(a)(ii) that is
attributable to clause (ii) of the definition of "Interest
Distribution Amount."
Class 1-A-16 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date
for Group 1,
the lesser of (a) the Class Certificate Balance of the Class 1-A-16
Certificates
with respect to such Distribution Date prior to any reduction for
the Class
1-A-16 Loss Allocation Amount and (b) the Class 1-A-11 Loss Amount
with respect
to such Distribution Date.
Class 2-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date for Group 2, the amount,
if any, by
which the Class Certificate Balance of the Class 2-A-1 Certificates
would be
reduced as a result of the allocation of any reduction pursuant to
Section
5.03(b) to such Class, without regard to the operation of Section
5.03(e).
Class 2-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date for Group 2,
the lesser of
(a) the Class Certificate Balance of the Class 2-A-2 Certificates
with respect
to such Distribution Date prior to any reduction for the Class
2-A-2 Loss
Allocation Amount and (b) the Class 2-A-1 Loss Amount with respect
to such
Distribution Date.
Class 2-B Certificates: The Class 2-B-1, Class 2-B-2, Class
2-B-3,
Class 2-B-4, Class 2-B-5 and Class 2-B-6 Certificates.
Class 2-30-IO Notional Amount: As to any Distribution Date and
the
Class 2-30-IO Component, the product of (i) the aggregate Stated
Principal
Balance of the Group 2 Premium Mortgage Loans on the Due Date in
the month
preceding the month of such Distribution Date and (ii) a fraction,
(a) the
numerator of which is equal to the weighted average of the Net
Mortgage Interest
Rates of the Group 2 Premium Mortgage Loans (based on the Stated
Principal
Balances of the Group 2 Premium Mortgage Loans as of the Due Date
in the month
preceding the month of such Distribution Date) minus 5.750% and (b)
the
denominator of which is equal to 5.500%.
Class 5-IO Notional Amount: As to any Distribution Date and the
Class 5-IO Certificates, the product of (i) the aggregate Stated
Principal
Balance of the Group 5 Premium Mortgage Loans on the Due Date in
the month
preceding the month of such Distribution Date and (ii) a fraction,
(a) the
numerator of which is equal to the weighted average of the Net
Mortgage Interest
Rates of the Group 5 Premium Mortgage Loans (based on the Stated
Principal
Balances of the Group 5 Premium Mortgage Loans as of the Due Date
in the month
preceding the month of such Distribution Date) minus 6.500% and (b)
the
denominator of which is equal to 6.500%.
Class 15-IO Notional Amount: As to any Distribution Date and
the
Class 15-IO Certificates, the product of (i) the aggregate Stated
Principal
Balance of the Group 4 Premium Mortgage Loans on the Due Date in
the month
preceding the month of such Distribution Date and (ii) a fraction,
(a) the
numerator of which is equal to the weighted average of the Net
Mortgage Interest
Rates of the Group 4 Premium Mortgage Loans (based on the Stated
Principal
Balances of the Group 4 Premium Mortgage Loans as of the Due Date
in the month
preceding the month of such Distribution Date) minus 5.000% and (b)
the
denominator of which is equal to 5.000%.
Class 20-IO Notional Amount: As to any Distribution Date and
the
Class 20-IO Certificates, the product of (i) the aggregate Stated
Principal
Balance of the Group 3 Premium Mortgage Loans on the Due Date in
the month
preceding the month of such Distribution Date and (ii) a fraction,
(a) the
numerator of which is equal to the weighted average of the Net
Mortgage Interest
Rates of the Group 3 Premium Mortgage Loans (based on the Stated
Principal
Balances of the Group 3 Premium Mortgage Loans as of the Due Date
in the month
preceding the month of such Distribution Date) minus 5.750% and (b)
the
denominator of which is equal to 5.750%.
Class 5-B Certificates: The Class 5-B-1, Class 5-B-2, Class
5-B-3,
Class 5-B-4, Class 5-B-5 and Class 5-B-6 Certificates.
Class 30-IO Component: Either of the Class 1-30-IO Component or
the
Class 2-30-IO Component.
Class Certificate Balance: With respect to any Class (other than
the
Class 1-A-9, Class 1-A-12, Class 1-A-15, Class X-PO, Class 30-IO,
Class 20-IO,
Class 15-IO and Class 5-IO Certificates) and any date of
determination, and
subject to Section 5.03(f), the Initial Class Certificate Balance
of such Class
(plus, in the case of the Class 1-A-11 and Class 1-A-16
Certificates, any Class
1-A-11 Accrual Distribution Amounts or Class 1-A-16 Accrual
Distribution
Amounts, as applicable, previously added thereto) minus (A) the sum
of (i) all
distributions of principal made with respect thereto (including in
the case of
any Class of Class X-B, Class 2-B or Class 5-B Certificates, any
principal
otherwise payable to such Class of Class X-B, Class 2-B or Class
5-B
Certificates used to pay any PO Deferred Amounts), (ii) all
reductions in Class
Certificate Balance previously allocated thereto pursuant to
Section 5.03(b) and
(iii) in the case of the Class 1-A-2, Class 1-A-16 and Class 2-A-2
Certificates,
any reduction allocated thereto pursuant to Section 5.03(e) plus
(B) the sum of
(x) all increases in Class Certificate Balance previously allocated
thereto
pursuant to Section 5.03(b) and (y) in the case of the Class 1-A-2,
Class 1-A-16
and Class 2-A-2 Certificates, any increases allocated thereto
pursuant to
Section 5.03(e). The Class 1-A-9, Class 1-A-12, Class 1-A-15, Class
30-IO, Class
15-IO, Class 20-IO and Class 5-IO Certificates are Interest-Only
Certificates
and have no Class Certificate Balance. The Class Certificate
Balance of the
Class X-PO Certificates as of any date of determination shall equal
the sum of
the Component Balances of the Class X-PO Components.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the Class 30-IO Certificates),
the amount by
which Accrued Certificate Interest for such Class (as reduced
pursuant to
Section 5.02(c)) exceeds the amount of interest actually
distributed on such
Class (or, in the case of the Class 1-A-11 and Class 1-A-16
Certificates prior
to the Accretion Termination Date, the amount included in the Class
1-A-11
Accrual Distribution Amount or Class 1-A-16 Accrual Distribution
Amount, as
applicable, pursuant to clause (i) of the definition thereof, but
not
distributed as interest on the Class 1-A-11 Certificates or Class
1-A-16
Certificates, as applicable) on such Distribution Date pursuant to
clause (i) of
the definition of "Interest Distribution Amount." As to any
Distribution Date
and the Class 30-IO Certificates, the sum of the Component Interest
Shortfalls
for the Class 30-IO Components.
Class IO Certificates: Any of the Class 30-IO, Class 20-IO,
Class
15-IO and Class 5-IO Certificates.
Class IO Component: Either of the Class 1-30-IO Component or
Class
2-30-IO Component.
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class (other than the Class 30-IO
Certificates), the
amount by which the aggregate Class Interest Shortfalls for such
Class on prior
Distribution Dates exceeds the amount of interest actually
distributed on such
Class (or, in the case of the Class 1-A-11 and Class 1-A-16
Certificates prior
to the Accretion Termination Date, the amount included in the Class
1-A-11
Accrual Distribution Amount or Class 1-A-16 Accrual Distribution
Amount, as
applicable, pursuant to clause (ii) of the definition thereof, but
not
distributed as interest on the Class 1-A-11 Certificates or Class
1-A-16
Certificates, as applicable) on such prior Distribution Dates
pursuant to clause
(ii) of the definition of "Interest Distribution Amount." As to any
Distribution
Date and the Class 30-IO Certificates, the sum of the Component
Unpaid Interest
Shortfalls for the Class 30-IO Components.
Class X-B Certificates: The Class X-B-1, Class X-B-2, Class
X-B-3,
Class X-B-4, Class X-B-5 and Class X-B-6 Certificates.
Class X-PO Component: Any of the Class 1-X-PO Component, Class
2-X-PO Component or Class 3-X-PO Component.
Closing Date: December 29, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date and
the
Crossed Loan Groups, Loan Group 2 or Loan Group 5, the least of (a)
the
aggregate Servicing Fee for such Distribution Date relating to the
Crossed Loan
Groups in the aggregate, Loan Group 2 or Loan Group 5 (before
giving effect to
any reduction pursuant to Section 3.17), (b) the Prepayment
Interest Shortfall
for such Distribution Date and the Crossed Loan Groups in the
aggregate, Loan
Group 2 or Loan Group 5 and (c) one-twelfth of 0.25% of the Pool
Stated
Principal Balance of Crossed Loan Groups in the aggregate, Loan
Group 2 or Loan
Group 5, as the case may be. To the extent that the aggregate
Prepayment
Interest Shortfall for a Distribution Date and the Crossed Loan
Groups exceeds
the Compensating Interest for the Crossed Loan Groups, such
Compensating
Interest for such Distribution Date shall be allocated between the
Crossed Loan
Groups in proportion to the respective Prepayment Interest
Shortfalls relating
to such Crossed Loan Groups.
Component: As defined in the Preliminary Statement.
Component Balance: With respect to any PO Component and any date
of
determination, the Initial Component Balance of such Component
minus the sum of
(i) all distributions of principal made with respect thereto and
(ii) all
reductions in Component Balance previously allocated thereto
pursuant to Section
5.03(b). The Class IO Components are interest-only Components and
have no
Component Balance.
Component Interest Distribution Amount: For any Distribution
Date
and each Class IO Component, the sum of (i) the Accrued Component
Interest and
(ii) any Component Unpaid Interest Shortfall for such Component.
The PO
Components are principal only Components and are not entitled to
distributions
of interest.
Component
Interest Shortfall: For any Distribution Date and each
Class IO Component, the amount by which Accrued Component Interest
for such
Component exceeds the amount of interest actually distributed on
such Component
on such Distribution Date pursuant to clause (i) of the definition
of "Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, either
of
the Class 1-30-IO Notional Amount or Class 2-30-IO Notional
Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date
and
each Class IO Component, the amount by which the aggregate
Component Interest
Shortfalls for such Component on prior Distribution Dates exceeds
the amount of
interest actually distributed on such Component on such prior
Distribution Dates
pursuant to clause (ii) of the definition of "Component Interest
Distribution
Amount."
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of
the
Trustee 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 - BOAMS
2004-11, and
for certificate transfer purposes is located at Sixth Street and
Marquette
Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust
Services -
BOAMS 2004-11, or at such other address as the Trustee may
designate from time
to time by notice to the Certificateholders, the Depositor and the
Servicer.
Corresponding Upper-Tier Class, Classes or Component: As to the
following Uncertificated Middle-Tier Interests, the Corresponding
Upper-Tier
Class, Classes or Component, as follows:
Corresponding Upper-Tier Class,
Uncertificated Middle-Tier Interest Classes or
Component
-----------------------------------
---------------------------------------
Class 1-A-M1 Interest
Class 1-A-1, 1-A-2, Class 1-A-3, Class
1-A-5, Class 1-A-6, Class 1-A-7 and
Class 1-A-8, 1-A-11 and Class 1-A-16
Certificates
Class 1-A-M4 Interest
Class 1-A-4 and Class 1-A-9
Certificates
Class 1-A-M10 Interest
Class 1-A-10 and Class 1-A-12
Certificates
Class 1-A-M13 Interest
Class 1-A-13 Certificates
Class 1-A-M14 Interest
Class 1-A-14 and Class 1-A-15
Certificates
Class 1-A-MUR Interest
Class 1-A-R Certificate
Class 2-A-M1 Interest
Class 2-A-1 and Class 2-A-2
Certificates
Class 3-A-M1 Interest
Class 3-A-1 Certificates
Class 4-A-M1 Interest
Class 4-A-1 Certificates
Class 5-A-M1 Interest
Class 5-A-1 Certificates
Class 1-X-MPO Interest
Class 1-X-PO Component
Class 2-X-MPO Interest
Class 2-X-PO Component
Class 3-X-MPO Interest
Class 3-X-PO Component
Class 15-MPO Interest
Class 15-PO Certificates
Class 5-MPO Interest
Class 5-PO Certificates
Class 1-30-MIO Interest
Class 1-30-IO Component
Class 2-30-MIO Interest
Class 2-30-IO Component
Class 20-MIO Interest
Class 20-IO Certificates
Class 15-MIO Interest
Class 15-IO Certificates
Class 5-MIO Interest
Class 5-IO Certificates
Class X-B-M1 Interest
Class X-B-1 Certificates
Class X-B-M2 Interest
Class X-B-2 Certificates
Class X-B-M3 Interest
Class X-B-3 Certificates
Class X-B-M4 Interest
Class X-B-4 Certificates
Class X-B-M5 Interest
Class X-B-5 Certificates
Class X-B-M6 Interest
Class X-B-6 Certificates
Class 2-B-M1 Interest
Class 2-B-1 Certificates
Class 2-B-M2 Interest
Class 2-B-2 Certificates
Class 2-B-M3 Interest
Class 2-B-3 Certificates
Class 2-B-M4 Interest
Class 2-B-4 Certificates
Class 2-B-M5 Interest
Class 2-B-5 Certificates
Class 2-B-M6 Interest
Class 2-B-6 Certificates
Class 5-B-M1 Interest
Class 5-B-1 Certificates
Class 5-B-M2 Interest
Class 5-B-2 Certificates
Class 5-B-M3 Interest
Class 5-B-3 Certificates
Class 5-B-M4 Interest
Class 5-B-4 Certificates
Class 5-B-M5 Interest
Class 5-B-5 Certificates
Class 5-B-M6 Interest
Class 5-B-6 Certificates
Crossed Aggregate Subordinate Percentage: As to any
Distribution
Date, the aggregate Class Certificate Balance of the Class X-B
Certificates
divided by the aggregate Pool Stated Principal Balance (Non-PO
Portion) for the
Crossed Loan Groups.
Crossed Group: Any of Group 1, Group 3 or Group 4.
Crossed Loan Group: Any of Loan Group 1, Loan Group 3 or Loan
Group
4.
Crossed Group Total 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 Crossed Groups (but not the PO Components of the Crossed Groups
and the
Class 15-PO Certificates) immediately prior to such Distribution
Date by the
aggregate Pool Stated Principal Balance (Non-PO Portion) of the
Crossed Loan
Groups with respect to such Distribution Date.
Custodian: Initially, the Trustee, and thereafter the Custodian,
if
any, hereafter appointed by the Trustee pursuant to Section 9.12.
The Custodian
may (but need not) be the Trustee or any Person directly or
indirectly
controlling or controlled by or under common control of either of
them. Neither
the Servicer nor the Depositor, nor 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 the Servicer,
procedures (including collection procedures) that the Servicer
customarily
employs and exercises in servicing and administering mortgage loans
for its own
account and which are in accordance with accepted mortgage
servicing practices
of prudent lending institutions servicing mortgage loans of the
same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties
are located.
Cut-off Date: December 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 $355,347,444.53 for Loan Group 1,
$128,382,537.41 for Loan
Group 2, $17,313,688.77 for Loan Group 3, $57,311,400.27 for Loan
Group 4 and
$81,845,733.67 for Loan Group 5.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close of business on the
Cut-off Date,
reduced by all installments of principal due on or prior thereto
whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on
the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of
the monthly
payment of principal and/or interest required to be paid with
respect to such
Due Date by the Mortgagor as established by a court of competent
jurisdiction
(pursuant to an order which has become final and nonappealable) as
a result of a
proceeding initiated by or against the related Mortgagor under the
Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no
such excess
shall be considered a Debt Service Reduction so long as (a) the
Servicer is
pursuing an appeal of the court order giving rise to any such
modification and
(b)(1) such Mortgage Loan is not in default with respect to payment
due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the
Servicer in
accordance with the terms of such Mortgage Loan as in effect on the
Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for pursuant to Section 2.02 or
2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then outstanding indebtedness under
such Mortgage
Loan over (ii) the secured valuation thereof established by a court
of competent
jurisdiction (pursuant to an order which has become final and
nonappealable) as
a result of a proceeding initiated by or against the related
Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant
to which
such Mortgagor retained such Mortgaged Property; provided that no
such excess
shall be considered a Deficient Valuation so long as (a) the
Servicer is
pursuing an appeal of the court order giving rise to any such
modification and
(b)(1) such Mortgage Loan is not in default with respect to
payments due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the
Servicer 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 Mortgage Securities, Inc., 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: As to any Distribution Date, the 16th day of
the
month of the related Distribution Date or, if such 16th day is not
a Business
Day, the Business Day immediately preceding such 16th day.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan, Group
2
Discount Mortgage Loan, Group 3 Discount Mortgage Loan, Group 4
Discount
Mortgage Loan or Group 5 Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in
January
2005 (or, if such day is not a Business Day, the next Business
Day).
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
(a) Bank of America, or (b) 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 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, 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 Bank of America.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class X-B-4, Class X-B-5,
Class
X-B-6, Class 2-B-4, Class 2-B-5, Class 2-B-6, Class 5-B-4, Class
5-B-5 or Class
5-B-6 Certificate.
Escrow Account: As defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and hazard insurance
premiums and other
payments as may be required to be escrowed by the Mortgagor with
the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events of
Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed
to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal
balance of
such Liquidated Mortgage Loan as of the Due Date in the month in
which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at
the Mortgage Interest Rate from the Due Date as to which interest
was last paid
or for which a Periodic Advance was made (and not reimbursed) up to
the Due Date
applicable to the Distribution Date immediately following the
calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates will be made pursuant
to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated by the Depositor by
written notice to
the Trustee.
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 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Group: Any of Group 1, Group 2, Group 3, Group 4 or Group 5.
Group 1: The Group 1 Senior Certificates, the Class 1-X-PO
Component
and the Class 1-30-IO Component.
Group 1 Discount Mortgage Loan: A Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
5.500% per
annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: A Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is equal to or
greater than
5.500% per annum.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-2, Class
1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-12, Class 1-A-13, Class
1-A-14, Class
1-A-15, Class 1-A-16, Class 1-A-R, Class 1-A-MR and Class 1-A-LR
Certificates.
Group 2: The Group 2 Senior Certificates, the Class 2-X-PO
Component
and the Class 2-30-IO Component.
Group 2 Discount Mortgage Loan: A Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
5.750% per
annum.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: A Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is equal to or
greater than
5.750% per annum.
Group 2 Senior Certificates: Class 2-A-1 and Class 2-A-2
Certificates.
Group 3: The Group 3 Senior Certificates and the Class 3-X-PO
Component.
Group 3 Discount Mortgage Loan: A Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
5.750% per
annum.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Premium Mortgage Loan: A Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is equal to or
greater than
5.750% per annum.
Group 3 Senior Certificates: Class 3-A-1 and Class 20-IO
Certificates.
Group 4: The Group 4 Senior Certificates.
Group 4 Discount Mortgage Loan: A Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
5.000% per
annum.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Premium Mortgage Loan: A Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is equal to or
greater than
5.000% per annum.
Group 4 Senior Certificates: Class 4-A-1, Class 15-IO and Class
15-PO Certificates.
Group 5: The Group 5 Senior Certificates.
Group 5 Discount Mortgage Loan: A Group 5 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is less than
6.500% per
annum.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Group 5 Premium Mortgage Loan: A Group 5 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off Date that is equal to or
greater than
6.500% per annum.
Group 5 Senior Certificates: Class 5-A-1, Class 5-IO and Class
5-PO
Certificates.
Group Subordinate Amount: With respect to any Distribution Date
and
any Loan Group, the excess of the Pool Stated Principal Balance
(Non-PO Portion)
for such Loan Group over the aggregate Class Certificate Balance of
the Senior
Certificates (but not the Class 15-PO and Class 5-PO Certificates)
of the
Related Group immediately prior to such date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact independent of the Depositor and
the Servicer,
(ii) does not have any direct financial interest or any material
indirect
financial interest in the Depositor or the Servicer or in an
affiliate of either
of them, and (iii) is not connected with the Depositor or the
Servicer as an
officer, employee, promoter, underwriter, trustee, partner,
director or person
performing similar functions.
Indirect Depository Participant: A broker, dealer, bank or
other
financial institution or other Person maintaining a custodial
relationship with
a Depository Participant.
Initial Class Certificate Balance: As to each Class of
Certificates
(other than the Class 1-A-9, Class 1-A-12, Class 1-A-15, Class
5-IO, Class
20-IO, Class 15-IO, Class 30-IO and Class X-PO Certificates), the
Class
Certificate Balance set forth in the Preliminary Statement. The
Class 1-A-9,
Class 1-A-12, Class 1-A-15, Class 30-IO, Class 20-IO, Class 15-IO
and Class 5-IO
Certificates are Interest-Only Certificates and have no Initial
Class
Certificate Balance. The Initial Class Certificate Balance of the
Class X-PO
Certificates is the sum of the Initial Component Balances for the
Class 1-X-PO,
Class 2-X-PO and Class 3-X-PO Components.
Initial Component Balance: As to each PO Component, the
Component
Balance set forth in the Preliminary Statement. The Class IO
Components are
interest-only Components and have no Initial Component Balance.
Initial Component Notional Amount: As to each Class IO
Component,
the Component Notional Amount set forth in the Preliminary
Statement.
Initial Notional Amount: As to each Class of Interest-Only
Certificates (other than the Class 30-IO Certificates), the
Notional Amount set
forth in the Preliminary Statement. As to the Class 30-IO
Certificates, the sum
of the Initial Component Notional Amounts for the Class 1-30-IO and
Class
2-30-IO Components.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any related insurance policy, including all riders
and
endorsements thereto in effect, including any replacement policy or
policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in
such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Certificates (other than the Class 1-A-14, Class 1-A-15, Class
X-PO, Class
5-PO, Class 15-PO and Class 30-IO Certificates) and each Class IO
Component, the
period from and including the first day of the calendar month
preceding the
calendar month of such Distribution Date to but not including the
first day of
the calendar month of such Distribution Date. As to any
Distribution Date and
the Class 1-A-14 and Class 1-A-15 Certificates, the period from and
including
the 25th day of the calendar month preceding the calendar month in
which such
Distribution Date occurs and ending on the 24th day of the calendar
month in
which such Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and
each
interest- bearing Class (other than the Class 30-IO Certificates),
the sum of
(i) the Accrued Certificate Interest, subject to reduction pursuant
to Section
5.02(c) and (ii) any Class Unpaid Interest Shortfall for such
Class. For any
Distribution Date and the Class 30-IO Certificates, the sum of the
Component
Interest Distribution Amounts for the Class 30-IO Components.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no distributions of principal. The
Class 1-A-9,
Class 1-A-12, Class 1-A-15, Class 30-IO, Class 20-IO, Class 15-IO
and Class 5-IO
Certificates are the only Classes of Interest-Only
Certificates.
Interest Settlement Rate: As defined in Section 5.09.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar
deposits, as
determined by the Trustee in accordance with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open
for
dealing in foreign currency and exchange in London, England or the
City of New
York.
LIBOR Certificates: Both of the Class 1-A-14 and Class 1-A-15
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
calendar month preceding the month of such Distribution Date and as
to which the
Servicer has certified (in accordance with this 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 or Loan Group 5.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 2 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 Group 2 Senior
Certificates (but not
the Class 2-X-PO Component) immediately prior to such Distribution
Date by the
aggregate Pool Stated Principal Balance (Non-PO Portion) of the
Loan Group 2
with respect to such Distribution Date.
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 5 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 Group 5 Senior
Certificates (but not
the Class 5-PO Certificates) immediately prior to such Distribution
Date by the
aggregate Pool Stated Principal Balance (Non-PO Portion) of Loan
Group 5 with
respect to such Distribution Date.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed as a percentage, the
numerator of
which is the outstanding principal balance of the related Mortgage
Loan at the
date of determination and the denominator of which is the Appraised
Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as
shall from time
to time be held in the Certificate Account (other than amounts held
in respect
of the Middle-Tier Certificate Sub-Account or the Upper-Tier
Certificate
Sub-Account), the insurance policies, if any, relating to a
Mortgage Loan and
property which secured a Mortgage Loan and which has been acquired
by
foreclosure or deed in lieu of foreclosure.
MERS: As defined in Section 2.01(b)(iii).
Middle-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Trustee pursuant to Section
3.08(f).
Middle-Tier Distribution Amount: As defined in Section 5.02(a).
Middle-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests
and such
amounts as shall from time to time be deemed held in the
Middle-Tier Certificate
Sub-Account.
Monthly Covered Amount: As defined in the Mortgage Loan
Purchase
Agreement.
Monthly Form 8-K: As defined in Section 3.22(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 or the Monthly Covered
Amount
representing such Scheduled Monthly Payment.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing a Mortgage Note or
creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on the principal balance of
such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 29, 2004, between Bank of America, as
seller, and the
Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the 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 and Exhibit D-5, setting forth the
following
information with respect to each Mortgage Loan: (i) the Mortgage
Loan
identifying number; (ii) a code indicating whether the Mortgaged
Property is
owner-occupied; (iii) the property type for each Mortgaged
Property; (iv) the
original months to maturity or the remaining months to maturity
from the Cut-off
Date; (v) the Loan-to-Value Ratio at origination; (vi) the Mortgage
Interest
Rate as of the Cut-off Date; (vii) the date on which the first
Monthly Payment
was due on the Mortgage Loan, and, if such date is not the Due Date
currently in
effect, such Due Date; (viii) the stated maturity date; (ix) the
amount of the
Monthly Payment as of the Cut-off Date; (x) the paid-through date;
(xi) the
original principal amount of the Mortgage Loan; (xii) the principal
balance of
the Mortgage Loan as of the close of business on the Cut-off Date,
after
application of payments of principal due on or before the Cut-off
Date, whether
or not collected, and after deduction of any payments collected of
scheduled
principal due after the Cut-off Date; (xiii) a code indicating the
purpose of
the Mortgage Loan; (xiv) a code indicating the documentation style;
(xv) the
Appraised Value; and (xvi) the closing date of such Mortgage Loan.
With respect
to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall set
forth the following information, as of the Cut-off Date: (i) the
number of
Mortgage Loans; (ii) the current aggregate outstanding principal
balance of the
Mortgage Loans; (iii) the weighted average Mortgage Interest Rate
of the
Mortgage Loans; and (iv) the weighted average months to maturity of
the Mortgage
Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as from time to time are
held as a part
of the Trust Estate (including any Substitute Mortgage Loans and
REO Property),
the Mortgage Loans originally so held being identified in the
Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence
of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or residential long-term
leases.
Mortgagor: The obligor on a Mortgage Note.
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 and (ii) the Trustee Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net
Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and the
denominator
of which is 5.500% for each Group 1 Discount Mortgage Loan, 5.750%
for each
Group 2 Discount Mortgage Loan and Group 3 Discount Mortgage Loan,
5.000% for
each Group 4 Discount Mortgage Loan and 6.500% for each Group 5
Discount
Mortgage Loan. As to any Mortgage Loan that is not a Discount
Mortgage Loan,
100%.
Non-PO Principal Amount: As to any Distribution Date and Loan
Group,
the sum of (i) the sum of the applicable Non-PO Percentage of (a)
the principal
portion of each Monthly Payment due on each Mortgage Loan in such
Loan Group on
the related Due Date, (b) the Stated Principal Balance, as of the
date of
repurchase, of each Mortgage Loan in such Loan Group that was
repurchased by the
Depositor pursuant to this Agreement 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
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 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 during the
calendar month
preceding the month of such Distribution Date; and (ii) the Non-PO
Recovery for
such Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group,
the
amount of all Recoveries received with respect to such Loan Group
during the
calendar month preceding the month of such Distribution Date less
the PO
Recovery with respect to such Loan Group for such Distribution
Date.
Non-Supported Interest Shortfalls: As to any Distribution Date
and
(i) the Crossed Loan Groups, the amount, if any, by which the
aggregate of
Prepayment Interest Shortfalls for the Crossed Loan Groups exceeds
Compensating
Interest for such Crossed Loan Groups for such Distribution Date,
(ii) Loan
Group 2, the amount, if any, by which the aggregate of Prepayment
Interest
Shortfalls for Loan Group 2 exceeds Compensating Interest for Loan
Group 2 for
such Distribution Date and (iii) Loan Group 5, the amount, if any,
by which the
aggregate of Prepayment Interest Shortfalls for Loan Group 5
exceeds
Compensating Interest for Loan Group 5 for such Distribution
Date
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a Mortgage Loan which has not
been previously
reimbursed and which, in the good faith judgment of the Servicer,
will not or,
in the case of a proposed Advance, would not be ultimately
recoverable from the
related Mortgagor, related Liquidation Proceeds, or other
recoveries in respect
of the related Mortgage Loan.
Notional Amount: With respect to: (i) the Class 1-A-9
Certificates
and any date of determination, the Class 1-A-9 Notional Amount,
(ii) the Class
1-A-12 Certificates and any date of determination, the Class 1-A-12
Notional
Amount, (iii) the Class 1-A-15 Certificates and any date of
determination, the
Class 1-A-15 Notional Amount, (iv) the Class 30-IO Certificates and
any date of
determination, the Class 30-IO Notional Amount, (v) the Class 20-IO
Certificates
and any date of determination, the Class 20-IO Notional Amount,
(vi) the Class
15-IO Certificates and any date of determination, the Class 15-IO
Notional
Amount, (vii) the Class 5-IO Certificates and any date of
determination, the
Class 5-IO Notional Amount, (viii) the Class 1-30-IO Component and
any date of
determination, the Class 1-30-IO Notional Amount and (ix) the Class
2-30-IO
Component and any date of determination, the Class 2-30-IO Notional
Amount.
Offered Certificates: The Senior Certificates, Class X-B-1,
Class
X-B-2, Class X-B-3, Class 2-B-1, Class 2-B-2, Class 2-B-3, Class
5-B-1, Class
5-B-2 and Class 5-B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board, President or a Vice President
and by the
Treasurer, the Secretary or one of the Assistant Treasurers or
Assistant
Secretaries, or any other duly authorized officer of the Depositor
or the
Servicer, as the case may be, and delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee, who may be counsel for the Depositor or the Servicer,
except that any
opinion of counsel relating to the qualification of the Trust
Estate as three
separate REMICs or compliance with the REMIC Provisions must be an
opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the corresponding percentage
described
below, as of the Closing Date:
Class X-B-1
1.20%
Class X-B-2
0.75%
Class X-B-3
0.45%
Class X-B-4
0.30%
Class X-B-5
0.15%
Class X-B-6
0.00%
Class 2-B-1
1.53%
Class 2-B-2
0.97%
Class 2-B-3
0.61%
Class 2-B-4
0.36%
Class 2-B-5
0.15%
Class 2-B-6
0.00%
Class 5-B-1
1.12%
Class 5-B-2
0.71%
Class 5-B-3
0.46%
Class 5-B-4
0.31%
Class 5-B-5
0.10%
Class 5-B-6
0.00%
Original Subordinate Certificate Balance: $12,470,967.00 for
the
Class X-B Certificates, $3,723,707.00 for the Class 2-B
Certificates and
$2,291,730.00 for Class 5-B Certificates.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal Prepayment in Full prior to such
Due Date,
which did not become 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 2.04.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates
(other than the Class 30-IO Certificates) and each Class 30-IO
Component, the
per annum rate set forth or described in the Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance of such Certificate (or
the initial
notional amount for Class 1-A-9, Class 1-A-12, Class 1-A-15, Class
30-IO, Class
20-IO, Class 15-IO and Class 5-IO Certificates) by the Initial
Class Certificate
Balance or Initial Notional Amount, as applicable, of the Class of
which such
Certificate is a part.
Periodic Advance: The payment required to be made by the
Servicer
with respect to any Distribution Date pursuant to Section 3.20, the
amount of
any such payment being equal to the aggregate of Monthly Payments
(net of the
Servicing Fee) on the Mortgage Loans (including any REO Property)
that were due
on the related Due Date and not received as of the close of
business on the
related Determination Date, less the aggregate amount of any such
delinquent
payments that the Servicer has determined would constitute a
Nonrecoverable
Advance if advanced.
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 "A-1" by S&P and "F-1" by
Fitch;
(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 "A-1" by S&P and "F-1" by Fitch;
(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 "A-1" by S&P
and
"F-1" by Fitch;
(v) investments in money market funds (including funds of the
Trustee or
its affiliates, or funds for which an affiliate of the Trustee
acts as
advisor, as well as funds for which the Trustee and its
affiliates
may receive
compensation) rated either "AAAm" or "AAAm G" by S&P and
"AAA"
by Fitch
(if rated by Fitch) 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
Servicer,
will not affect the qualification of the Trust Estate as three
separate
REMICs;
provided, however, that no instrument shall be a Permitted
Investment if it
represents either (a) the right to receive only interest payments
with respect
to the underlying debt instrument or (b) the right to receive both
principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of such
underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision thereof, or any agency
or
instrumentality of any of the foregoing, (ii) a foreign
government,
international organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization which is exempt from tax imposed
by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code
on unrelated
business taxable income) (except certain farmers' cooperatives
described in Code
Section 521), (iv) rural electric and telephone cooperatives
described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income
on a
Residual Certificate is allocable to a foreign permanent
establishment or fixed
base, within the meaning of an applicable income tax treaty, of
such Person or
any other Person, and (vi) any other Person so designated by the
Servicer based
on an Opinion of Counsel to the effect that any transfer to such
Person may
cause the Trust or any other Holder of a Residual Certificate to
incur tax
liability that would not be imposed other than on account of such
transfer. The
terms "United States," "State" and "international organization"
shall have the
meanings set forth in Code Section 7701 or successor
provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-MR, Class
1-A-LR,
Class X-B-4, Class X-B-5, Class X-B-6, Class 2-B-4, Class 2-B-5,
Class 2-B-6,
Class 5-B-4, Class 5-B-5 and Class 5-B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Component: Any of the Class 1-X-PO Component, Class 2-X-PO
Component or Class 3-X-PO Component.
PO Deferred Amount: As to any Distribution Date and each PO
Component, the sum of the amounts by which the Component Balance of
such PO
Component will be reduced on such Distribution Date or has been
reduced on prior
Distribution Dates as a result of Section 5.03(b) less the sum of
(a) the PO
Recoveries with respect to the Related Loan Group for prior
Distribution Dates
and (b) the amounts distributed to such PO Component pursuant to
Section
5.02(a)(iii) on prior Distribution Dates. As to any Distribution
Date and the
Class 15-PO Certificates, the sum of the amounts by which the Class
Certificate
Balance of such Class 15-PO Certificates will be reduced on such
Distribution
Date or has been reduced on prior Distribution Dates as a result of
Section
5.03(b) less the sum of (a) the PO Recoveries with respect to Loan
Group 4 for
prior Distribution Dates and (b) the amounts distributed to such
Class 15-PO
Certificates pursuant to Section 5.02(a)(iii) on prior Distribution
Dates. As to
any Distribution Date and the Class 5-PO Certificates, the sum of
the amounts by
which the Class Certificate Balance of such Class 5-PO Certificates
will be
reduced on such Distribution Date or has been reduced on prior
Distribution
Dates as a result of Section 5.03(b) less the sum of (a) the PO
Recoveries with
respect to Loan Group 5 for prior Distribution Dates and (b) the
amounts
distributed to such Class 5-PO Certificates pursuant to Section
5.02(a)(iv) on
prior Distribution Dates.
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan
that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group,
the
sum of the applicable PO Percentage of (a) the principal portion of
each Monthly
Payment due on each Mortgage Loan in such Loan Group on the related
Due Date,
(b) the Stated Principal Balance, as of the date of repurchase, of
each Mortgage
Loan in such Loan Group that was repurchased by the Depositor
pursuant to this
Agreement as of such Distribution Date, (c) any Substitution
Adjustment Amount
in connection with any Defective Mortgage Loan in such Loan Group
received with
respect to such Distribution Date, (d) any Liquidation Proceeds
allocable to
recoveries of principal of Mortgage Loans in such Loan Group that
are not yet
Liquidated Mortgage Loans received 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 with
respect to such
Mortgage Loan during the calendar month preceding the month of such
Distribution
Date with respect to such Mortgage Loan and (f) all Principal
Prepayments
received on the Mortgage Loans in such Loan Group received during
the calendar
month preceding the month of such Distribution Date.
PO Recovery. As to any Distribution Date and Loan Group, the
lesser
of (a) (i) in the case of Group 1, Group 2 and Group 3, the PO
Deferred Amount
for the Class X-PO Component of the Related Group for such
Distribution Date,
(ii) in the case of Group 4, the PO Deferred Amount for the Class
15-PO
Certificates for such Distribution Date and (iii) in the case of
Group 5, the PO
Deferred Amount for the Class 5-PO Certificates for such
Distribution Date and
(b) an amount equal to the sum as to each Mortgage Loan in such
Loan Group as to
which there has been a Recovery received during the calendar month
preceding the
month of such Distribution Date, of the product of (x) the PO
Percentage with
respect to such Mortgage Loan and (y) the amount of the Recovery
with respect to
such Mortgage Loan.
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the aggregate of (A) the
interest
portion of any Monthly Payment on a Mortgage Loan in such Loan
Group (net of the
Servicing Fee) and the principal portion of any Monthly Payment on
a Mortgage
Loan in such Loan Group due on the Due Date in the month in which
such
Distribution Date occurs and which is received prior to the
related
Determination Date (or in the case of any Monthly Covered Amount,
the related
Remittance Date) and (B) all Periodic Advances and payments of
Compensating
Interest allocable to such Loan Group in respect of such Loan Group
and
Distribution Date deposited to the Servicer Custodial Account
pursuant to
Section 3.08(b)(vii); (ii) all Liquidation Proceeds received on the
Mortgage
Loans in such Loan Group during the preceding calendar month and
deposited to
the Servicer Custodial Account pursuant to Section 3.08(b)(iii);
(iii) all
Principal Prepayments (other than Total Covered Amounts) received
on the
Mortgage Loans in such Loan Group during the month preceding the
month of such
Distribution Date and deposited to the Servicer Custodial Account
pursuant to
Section 3.08(b)(i) during such period and all Total Covered Amounts
received and
deposited in the Servicer Custodial Account by the related
Remittance Date; (iv)
in connection with Defective Mortgage Loans in such Loan Group, as
applicable,
the aggregate of the Repurchase Prices and Substitution Adjustment
Amounts
deposited on the related Remittance Date pursuant to Section
3.08(b)(vi); (v)
any other amounts in the Servicer Custodial Account deposited
therein pursuant
to Sections 3.08(b)(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 Non-PO Recovery with respect to
such
Distribution Date over (b) any (i) amounts permitted to be
withdrawn from the
Servicer Custodial Account pursuant to clauses (i) through (vii),
inclusive, of
Section 3.11(a) in respect of such Loan Group and (ii) amounts
permitted to be
withdrawn from the Certificate Account pursuant to clauses (i) and
(ii) of
Section 3.11(b) 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 immediately
following the Due
Date in the month preceding the month in which such Distribution
Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group, the sum for each Mortgage Loan in
such Loan
Group of the product of (a) the Non-PO Percentage of such Mortgage
Loan and (b)
the Stated Principal Balance of such Mortgage Loan that was an
Outstanding
Mortgage Loan immediately following the Due Date in the month
preceding the
month in which such Distribution Date occurs.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan, Group
2
Premium Mortgage Loan, Group 3 Premium Mortgage Loan, Group 4
Premium Mortgage
Loan or Group 5 Premium Mortgage Loan.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal Prepayment received during the
calendar
month preceding such Distribution Date, the amount, if any, by
which one month's
interest at the related Mortgage Interest Rate (net of the
Servicing Fee) on
such Principal Prepayment exceeds the amount of interest paid in
connection with
such Principal Prepayment.
Primary Insurance Policy: Each policy of primary mortgage
guaranty
insurance or any replacement policy therefor with respect to any
Mortgage Loan,
in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled
to
distributions of principal, but to no distributions of interest.
The Class X-PO,
Class 5-PO and Class 15-PO Certificates are the only Principal
Only
Certificates.
Principal Prepayment: Any payment or other recovery of principal
on
a Mortgage Loan (other than Liquidation Proceeds) which is received
in advance
of its scheduled Due Date and is not accompanied by an amount of
interest
representing scheduled interest due on any date or dates in any
month or months
subsequent to the month of prepayment including the principal
portion of any
Total Covered Amount.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Priority Amount: As to any Distribution Date, the lesser of (i)
the
sum of the Class Certificate Balances of the Class 1-A-1, Class
1-A-2, Class
1-A-4 and Class 1-A-8 Certificates and (ii) the product of (a) the
Non-PO
Principal Amount for Loan Group 1, (b) the Shift Percentage and (c)
the Priority
Percentage.
Priority Percentage: As to any Distribution Date, the
percentage
equivalent (carried to six places rounded up) of a fraction the
numerator of
which is the sum of the Class Certificate Balances of the Class
1-A-1, Class
1-A-2, Class 1-A-4 and Class 1-A-8 Certificates immediately prior
to such date
and the denominator of which is the Pool Stated Principal Balance
(Non-PO
Portion) for Loan Group 1.
Private Certificates: The Class X-B-4, Class X-B-5, Class
X-B-6,
Class 2-B-4, Class 2-B-5, Class 2-B-6, Class 5-B-4, Class 5-B-5 and
Class 5-B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Class
X-B Certificates, Class 2-B Certificates or Class 5-B Certificates,
as
applicable, that is not a Restricted Class, the portion of the
Subordinate
Principal Distribution Amounts allocable to such Class, equal to
the product of
the Subordinate Principal Distribution Amounts for the Class X-B
Certificates,
Class 2-B Certificates or Class 5-B Certificates, as the case may
be, 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 X-B Certificates, Class 2-B
Certificates or
Class 5-B Certificates, as applicable, that are not Restricted
Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related Mortgage Loan, who had
no interest,
direct or indirect, in such Mortgaged Property or in any loan made
on the
security thereof, whose compensation is not affected by the
approval or
disapproval of the related Mortgage Loan and who met the minimum
qualifications
of FNMA or FHLMC.
Rate Determination Date: As to any Class of LIBOR Certificates,
the
second LIBOR Business Day prior to the beginning of the applicable
Interest
Accrual Period for such Class and such Distribution Date.
Rating Agency: Each of Fitch and S&P. If either such
organization or
a successor is no longer in existence, "Rating Agency" shall be
such nationally
recognized statistical rating organization, or other comparable
Person, as is
designated by the Depositor, notice of which designation shall be
given to the
Trustee. References herein to a given rating or rating category of
a Rating
Agency shall mean such rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation, equal to (i) the unpaid
principal
balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date
as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Net Mortgage Interest Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that
has become the
subject of a Deficient Valuation, if the principal amount due under
the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become the
subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Monthly Payment has been
reduced.
Record Date: The last day of the month (or, if such day is not
a
Business Day, the preceding Business Day) preceding the month of
the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such
Mortgage Loan being determined to be a Liquidated Mortgage
Loan.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of
which
were not used to purchase the related Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.04.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group
2
and the Class 2-B Certificates; for Loan Group 3, Group 3; for Loan
Group 4,
Group 4; for Loan Group 5, Group 5 and the Class 5-B Certificates,
for the
Crossed Loan Groups, Group 1, Group 3 and Group 4 and the Class
X-B
Certificates.
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 the Class X-B Certificates, the Crossed Loan Groups,
for the Class
2-B Certificates, Loan Group 2 and for the Class 5-B Certificates,
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.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates and the Components as that term is
defined in
Section 2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and regulations promulgated thereunder, as the foregoing may be in
effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m.
Eastern
time on the Business Day immediately preceding such Distribution
Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the
Servicer,
received in respect of any REO Property (including, without
limitation, proceeds
from the rental of the related Mortgaged Property) which are
received prior to
the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer 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 Sections 2.02 or 2.04, an amount equal to 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.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee,
substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be maintained from time to
time under this
Agreement in respect of such Mortgage Loan.
Residual Certificates: The Class 1-A-R, Class 1-A-MR or Class
1-A-LR
Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Department of the Trustee, 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 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.
Seller: Bank of America, a national banking association, or its
successor in interest, as seller of the Mortgage Loans under the
Mortgage Loan
Purchase Agreement.
Senior Certificates: Any of the Group 1 Senior Certificates, Group
2
Senior Certificates, Group 3 Senior Certificates, Group 4 Senior
Certificates,
Group 5 Senior Certificates, Class X-PO and Class 30-IO
Certificates.
Senior Credit Support Depletion Date: As to each of the Crossed
Groups, the date on which the aggregate Class Certificate Balance
of the Class
X-B Certificates is reduced to zero, as to Loan Group 2, the date
on which the
aggregate Class Certificate Balance of the Class 2-B Certificates
is reduced to
zero, and as to Loan Group 5, the date on which the aggregate Class
Certificate
Balance of the Class 5-B Certificates is reduced to zero.
Senior Percentage: With respect to any Distribution Date and
Loan
Group, the percentage, carried six places rounded up, obtained by
dividing (i)
the aggregate Class Certificate Balance of the Senior Certificates
of the
Related Group immediately prior to such Distribution Date, by (ii)
the Pool
Stated Principal Balance (Non-PO Portion) of such Loan Group
immediately prior
to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group during the five years beginning on the first Distribution
Date, 100%. The
Senior Prepayment Percentage for any Loan Group for any
Distribution Date
occurring on or after the fifth anniversary of the first
Distribution Date will,
except as provided herein, be as follows: for any Distribution Date
in the first
year thereafter, the Senior Percentage for such Loan Group plus 70%
of the
Subordinate Percentage for such Loan Group for such Distribution
Date; for any
Distribution Date in the second year thereafter, the Senior
Percentage for such
Loan Group plus 60% of the Subordinate Percentage for such Loan
Group for such
Distribution Date; for any Distribution Date in the third year
thereafter, the
Senior Percentage for such Loan Group plus 40% of the Subordinate
Percentage for
such Loan Group for such Distribution Date; for any Distribution
Date in the
fourth year thereafter, the Senior Percentage for such Loan Group
plus 20% of
the Subordinate Percentage for such Loan Group for such
Distribution Date; and
for any Distribution Date in the fifth or later years thereafter,
the Senior
Percentage for such Loan Group for such Distribution Date (unless
on any of the
foregoing Distribution Dates (i) the Crossed Group Total Senior
Percentage
exceeds the initial Crossed Group Total Senior Percentage, in which
case the
Senior Prepayment Percentage for the Crossed Loan Groups for such
Distribution
Date will once again equal 100%, (ii) the Group 2 Total Senior
Percentage
exceeds the initial Group 2 Total Senior Percentage, in which case
the Senior
Prepayment Percentage for the Loan Group 2 for such Distribution
Date will once
again equal 100% and (iii) the Group 5 Total Senior Percentage
exceeds the
initial Group 5 Total Senior Percentage, in which case the Senior
Prepayment
Percentage for Loan Group 5 for such Distribution Date will once
again equal
100%. Notwithstanding the foregoing, no decrease in the Senior
Prepayment
Percentage for any Crossed Loan Group will occur unless both of the
Senior Step
Down Conditions for the Crossed Loan Groups are satisfied, no
decrease in the
Senior Prepayment Percentage for Loan Group 2 will occur unless
both of the
Senior Step Down Conditions for Loan Group 2 are satisfied, and no
decrease in
the Senior Prepayment Percentage for Loan Group 5 will occur unless
both of the
Senior Step Down Conditions for Loan Group 5 are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior Percentage for such Loan
Group of the
applicable Non-PO Percentage of the amounts described in clauses
(i) (a) through
(d) of the definition of "Non-PO Principal Amount" for such
Distribution Date
and Loan Group and (ii) the Senior Prepayment Percentage for such
Loan Group of
(1) the applicable Non-PO Percentage of the amounts described in
clauses(i) (e)
and (f) and (2) the amount described in clause (ii) of the
definition of "Non-PO
Principal Amount" for such Distribution Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and a
Crossed Loan Group as to which any decrease in the Senior
Prepayment Percentage
for any 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 X-B 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 Subordinate Certificate
Balance for the
Class X-B Certificates set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
As of any Distribution Date and Loan Group 2 as to which any
decrease in the Senior Prepayment Percentage for Loan Group 2
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 2-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 Subordinate Certificate Balance for the Class 2-B
Certificates set
forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
As of any Distribution Date and Loan Group 5 as to which any
decrease in the Senior Prepayment Percentage for Loan Group 5
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 5-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 Subordinate Certificate Balance for the Class 5-B
Certificates set
forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
Servicer: Bank of America, N.A., a national banking association,
or
its successor in interest, in its capacity as servicer of the
Mortgage Loans, or
any successor servicer appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Business Day immediately preceding such
Distribution Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the Servicer pursuant to Section
3.08(b).
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 Servicer
Custodial Account.
Servicer's Certificate: The monthly report required by Section
4.01.
Servicing Advances: All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred in the performance by the
Servicer of its
servicing obligations, including, but not limited to (i) the
preservation,
restoration and protection of a Mortgaged Property, (ii) expenses
reimbursable
to the Servicer pursuant to Section 3.14 and any enforcement or
judicial
proceedings, including foreclosures, (iii) the management and
liquidation of any
REO Property and (iv) compliance with the obligations under Section
3.12.
Servicing Compensation: With respect to each Distribution Date,
the
sum of (i) the aggregate Servicing Fee for such Distribution Date
subject to
reduction as provided in Section 3.17, (ii) any Ancillary Income,
(iii) Excess
Proceeds for the preceding month and (iv) the Servicer Custodial
Account
Reinvestment Income for such Distribution Date.
Servicing Fee: With respect to each Mortgage Loan and
Distribution
Date, the amount of the fee payable to the Servicer, which shall,
for such
Distribution Date, be equal to one-twelfth of the product of the
Servicing Fee
Rate with respect to such Mortgage Loan and the Stated Principal
Balance of such
Mortgage Loan. Such fee shall be payable monthly, computed on the
basis of the
same Stated Principal Balance and period respecting which any
related interest
payment on a Mortgage Loan is computed. The Servicer's right to
receive the
Servicing Fee is limited to, and payable solely from, the interest
portion
(including recoveries with respect to interest from Liquidation
Proceeds and
other proceeds, to the extent permitted by Section 3.11) of related
Monthly
Payments collected by the Servicer, or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.250%
per
annum.
Servicing File: The items pertaining to a particular Mortgage
Loan
referred to in Exhibit J hereto, and any additional documents
required to be
added to the Servicing File pursuant to the Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage
Loans whose
name appears on a list of servicing officers furnished to the
Trustee by the
Servicer, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses
incurred
by the Trustee in connection with the transfer of servicing from a
predecessor
servicer, including, without limitation, 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
Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to
enable the
Trustee to service the Mortgage Loans properly and effectively.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date
Occurring In
Shift Percentage
----------------------------------
----------------
January 2005 through
December 2009
0%
January 2010 through
December 2010
30%
January 2011 through
December 2011
40%
January 2012 through
December 2012
60%
January 2013 through
December 2013
80%
January 2014 and
thereafter
100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage Loan as of the Due Date
immediately
preceding such date as specified in the amortization schedule at
the time
relating thereto (before any adjustment to such amortization
schedule by reason
of any moratorium or similar waiver or grace period) after giving
effect to any
previous partial Principal Prepayments and Liquidation Proceeds
allocable to
principal (other than with respect to any Liquidated Mortgage Loan)
and to the
payment of principal due on such Due Date and irrespective of any
delinquency in
payment by the related Mortgagor, and after giving effect to any
Deficient
Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the Class 1-LS Interest, the
Class 3-LS
Interest and the Class 4-LS Interest, equal to the ratio among the
Group
Subordinate Amount of Loan Group 1, the Group Subordinate Amount of
Loan Group 3
and the Group Subordinate Amount of Loan Group 4.
Subordinate Certificates: The Class X-B, Class 2-B and Class
5-B
Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such Loan Group for such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior Prepayment Percentage for such
Loan Group for
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i)
the
Subordinate Percentage for such Loan Group of the applicable Non-PO
Percentage
of the amounts described in clauses (i) (a) through (d) of the
definition of
"Non-PO Principal Amount" for such Distribution Date and Loan Group
and (ii) the
Subordinate Prepayment Percentage of (1) the applicable Non-PO
Percentage of the
amounts described in clauses (i) (e) and (f) and (2) the amount
described in
clause (ii) of the definition of "Non-PO Principal Amount" for such
Distribution
Date and Loan Group.
Subservicer: Any Person with which the Servicer has entered into
a
Subservicing Agreement and which satisfies the requirements set
forth therein.
Subservicing Agreement: Any subservicing agreement (which, in
the
event the Subservicer is an affiliate of the Servicer, need not be
in writing)
between the Servicer and any Subservicer relating to servicing
and/or
administration of certain Mortgage Loans as provided in Section
3.02.
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,
and not more
than 10% less than, the Stated Principal Balance of the Defective
Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the
Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the
Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater
than (and not
more than one year less than) that of the Defective Mortgage Loan;
and (v)
comply with each Mortgage Loan representation and warranty set
forth in 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.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner provided under Treasury
Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Telerate page 3750: As defined in Section 5.09.
Total Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
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.
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as
shall from
time to time be identified as deposited in the Servicer Custodial
Account or the
Certificate Account, in accordance with this Agreement, REO
Property, the
Primary Insurance Policies, any other Required Insurance Policy,
the right to
receive any BPP Mortgage Loan Payment and the right to receive
amounts, if any,
payable on behalf of any Mortgagor from the Buy-Down Account
relating to any
Buy-Down Mortgage Loan. The Buy-Down Account shall not be part of
the Trust
Estate.
Trustee: Wells Fargo Bank, N.A., and its successors-in-interest
and,
if a successor trustee is appointed hereunder, such successor, as
trustee.
Trustee Fee: As to any Distribution Date and Loan Group, an
amount
equal to one-twelfth of the Trustee Fee Rate multiplied by the
aggregate Stated
Principal Balance of the Mortgage Loans in the Related Loan Group
immediately
following the Due Date in the month preceding the month in which
such
Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0035%
per
annum.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Middle-Tier REMIC
and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 1-LIO Interest,
Class 1-LPO
Interest, Class 2-L Interest, Class 2-LIO Interest, Class 2-LPO
Interest, Class
3-L Interest, Class 3-LS Interest, Class 3-LIO Interest, Class
3-LPO Interest,
Class 4-L Interest, Class 4-LS Interest, Class 4-LIO Interest,
Class 4-LPO
Interest, Class 5-L Interest, Class 5-LIO Interest and Class 5-LPO
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-M4 Interest, Class 1-A-M10
Interest, Class
1-A-M13 Interest, Class 1-A-M14 Interest, Class 1-A-MUR Interest,
Class 2-A-M1
Interest, Class 3-A-M1 Interest, Class 4-A-M1 Interest, Class
5-A-M1 Interest,
Class 1-X-MPO Interest, Class 2-X-MPO Interest, Class 3-X-MPO
Interest,
Class15-MPO Interest, Class 5-PO Interest, Class 1-30-MIO Interest,
Class
2-30-MIO Interest, Class 20-MIO Interest, Class 15-MIO Interest,
Class 5-MIO
Interest, Class X-B-M1 Interest, Class X-B-M2 Interest, Class
X-B-M3 Interest,
Class X-B-M4 Interest, Class X-B-M5 Interest, Class X-B-M6
Interest, Class
2-B-M1 Interest, Class 2-B-M2 Class 2-B-M3 Interest, Class 2-B-M4
Interest,
Class 2-B-M5 Interest, Class 2-B-M6 Interest, Class 5-B-M1
Interest, Class
5-B-M2 Interest, Class 5-B-M3 Interest, Class 5-B-M4 Interest,
Class 5-B-M5
Interest and Class 5-B-M6 Interest Interest are Uncertificated
Middle-Tier
Interests.
Underwriting Guidelines: The underwriting guidelines of Bank of
America.
Upper-Tier Certificate: Any one of the Senior Certificates
(other
than the Class 1-A-MR and Class 1-A-LR Certificates) and the Class
X-B, Class
2-B and Class 5-B Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Trustee pursuant to Section
3.08(f).
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 1-A-9 Certificates, (b) 1% of all Voting Rights shall be
allocated to
the Holders of the Class 1-A-12 Certificates, (c) 1% of all Voting
Rights shall
be allocated to the Holders of the Class 1-A-15 Certificates, (d)
1% of all
Voting Rights shall be allocated to the Holders of the Class 20-IO
Certificates,
(e) 1% of all Voting Rights shall be allocated to the Holders of
the Class 5-IO
Certificates, (f) 1% of all Voting Rights shall be allocated
collectively to the
Holders of the Residual Certificates, (g) 1% of all Voting Rights
shall be
allocated to the Holders of the Class 15-IO Certificates, (h) 1% of
all Voting
Rights shall be allocated to the Holders of the Class 30-IO
Certificates and (i)
the remaining Voting Rights shall be allocated among Holders of the
remaining
Classes of Certificates in proportion to the Certificate Balances
of their
respective Certificates on such date. Section 1.02 Interest
Calculations. All
calculations of interest will be made on a 360-day year consisting
of twelve
30-day months. All dollar amounts calculated hereunder shall be
rounded to the
nearest penny with one-half of one penny being rounded down.
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 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. In addition, 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, the Depositor's rights to
receive any
BPP Mortgage Loan Payment. It is agreed and understood by the
parties hereto
that it is not intended that any mortgage loan be included in the
Trust that is
a "High-Cost Home Loan" as defined in any of (i) the New Jersey
Home Ownership
Act effective November 27, 2003, (ii) the New Mexico Home Loan
Protection Act
effective January 1, 2004 or (iii) the Massachusetts Predatory Home
Loan
Practices Act effective November 7, 2004.
(b) In connection with such transfer and assignment, the
Depositor
shall deliver or cause to be delivered to the Trustee, for the
benefit of the
Certificateholders, the following documents or instruments with
respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wells Fargo Bank,
N.A., as
trustee for the holders of the Banc of America Mortgage
Securities, Inc. Mortgage Pass-Through Certificates, Series
2004-11,
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);
(ii) except as provided below, the original recorded Mortgage
with
evidence
of a recording thereon, or if any such Mortgage has not been
returned
from the applicable recording office or has been lost, or if
such
public recording
office retains the original recorded Mortgage, a copy of
such
Mortgage certified by the Depositor 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 "Wells Fargo Bank, N.A., as trustee
for
the
holders of the Banc of America Mortgage Securities, Inc.,
Mortgage
Pass-Through Certificates, Series 2004-11" (which may be included
in a
blanket
assignment or assignments), together with, except as provided
below,
originals of all interim recorded assignments of such mortgage or
a
copy of
such interim assignment certified by the Depositor as being a
true
and
complete copy of the original recorded intervening assignments
of
Mortgage
(each such assignment, when duly and validly completed, to be
in
recordable
form and sufficient to effect the assignment of and transfer to
the
assignee thereof, under the Mortgage to which the assignment
relates);
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 Servicer shall
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) any of (A) the original or duplicate original mortgagee
title
insurance
policy and all riders thereto, (B) a title search showing no
lien
(other than standard exceptions of the type described in Section
2.04
(viii)) on
the Mortgaged Property senior to the lien of the Mortgage or
(C) an
opinion of counsel of the type customarily rendered in the
applicable
jurisdiction in lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording
indicated thereon, or, if the lease is in the process of being
recorded,
a photocopy of the lease, certified by an officer of the
respective
prior owner of such Mortgage Loan or by the applicable title
insurance
company, closing/settlement/escrow agent or company or closing
attorney
to be a true and correct copy of the lease transmitted for
recordation;
(viii)the original of any security agreement, chattel mortgage
or
equivalent
document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the
originals
of the
following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item
(iii), the
Depositor has delivered to the Trustee a copy of such Assignment of
Mortgage in
blank and has caused the Servicer to retain the completed
Assignment of Mortgage
for recording as described below, unless such Mortgage has been
recorded in the
name of MERS or its designee. In addition, if the Depositor is
unable to deliver
or cause the delivery of any original Mortgage Note due to the loss
of such
original Mortgage Note, the Depositor may deliver a copy of such
Mortgage Note,
together with a lost note affidavit, and shall thereby be deemed to
have
satisfied the document delivery requirements of this Section
2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C)
all
assumption, modification, consolidation or extension agreements, if
any, or (D)
the lender's title policy (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 Servicer 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), there has been a continuing
delay at the
applicable insurer and the Depositor has delivered the Officer's
Certificate to
such effect to the Trustee. The Depositor shall forward or cause to
be forwarded
to the Trustee (1) from time to time additional original documents
evidencing an
assumption or modification of a Mortgage Loan and (2) any other
documents
required to be delivered by the Depositor or the 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 Servicer 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.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, the
Servicer shall
(except for any Mortgage which has been recorded in the name of
MERS or its
designee) (I) cause each Assignment of Mortgage to be in proper
form for
recording in the appropriate public office for real property
records within 30
days of the Closing Date 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 Servicer
has not
received the information required to prepare such assignment in
recordable form,
the Servicer's obligation to do so and to deliver the same for such
recording
shall be as soon as practicable after receipt of such information
and in any
event within 30 days after the receipt thereof and, no recording of
an
Assignment of Mortgage will be required in a state if either (i)
the Depositor
furnishes to the Trustee an unqualified Opinion of Counsel
reasonably acceptable
to the Trustee to the effect that recordation of such assignment is
not
necessary under applicable state law to preserve the Trustee's
interest in the
related Mortgage Loan against the claim of any subsequent
transferee of such
Mortgage Loan or any successor to, or creditor of, the Depositor or
the
originator of such Mortgage Loan or (ii) the recordation of an
Assignment of
Mortgage in such state is not required by either Rating Agency in
order to
obtain the initial ratings on the Certificates on the Closing Date.
Set forth on
Exhibit L attached hereto is a list of all states where recordation
is required
by either Rating Agency to obtain the initial ratings of the
Certificates. The
Trustee may rely and shall be protected in relying upon the
information
contained in such Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of delivering the above
documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause
the Servicer
to deposit in the Servicer Custodial Account the portion of such
payment that is
required to be deposited in the Servicer Custodial Account pursuant
to Section
3.08.
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, 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
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
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,
the Trustee
shall promptly so notify the Servicer, the Depositor, or shall
cause the
Custodian to promptly so notify the Servicer and the Depositor. 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. The Depositor hereby covenants and
agrees that it
will promptly correct or cure such defect within 90 days from the
date it was so
notified of such defect and, if the Depositor does not correct or
cure such
defect within such period, the Depositor will either (a) substitute
for the
related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be
accomplished in the manner and subject to the conditions set forth
below or (b)
purchase such Mortgage Loan from the Trustee 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 shall 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.
With respect to each Substitute Mortgage Loan the Depositor
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 and will be retained by the Depositor. For the month
of
substitution, distributions to Certificateholders will include the
Monthly
Payment due for such month on any Defective Mortgage Loan for which
the
Depositor has substituted a Substitute Mortgage Loan.
The 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 Servicer shall deliver the amended Mortgage
Loan Schedule
to 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 Depositor 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 Section 2.04. Upon
any such
substitution and the deposit to the 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 release, or shall
direct the
Custodian to release, the Mortgage File relating to such Defective
Mortgage Loan
to the Depositor and shall execute and deliver at the Depositor's
direction such
instruments of transfer or assignment prepared by the Depositor, in
each case
without recourse, as shall be necessary to vest title in the
Depositor, or its
designee, to the Trustee's interest in any Defective Mortgage Loan
substituted
for pursuant to this Section 2.02.
For any month in which the Depositor 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 such
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 deposited
into the
Servicer Custodial Account by the Depositor on or before the
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 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 Servicer shall
promptly deliver
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 Servicer's
possession from time
to time.
It is understood and agreed that the obligation of the Depositor
to
substitute for or to purchase any Mortgage Loan which does not meet
the
requirements of Section 2.01 shall constitute the sole remedy
respecting such
defect available to the Trustee and any Certificateholder against
the Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect, review or examine any
such
documents, instruments, certificates or other papers to determine
that they are
genuine, enforceable, or appropriate for the represented purpose or
that they
are other than what they purport to be on their face or (ii) to
determine
whether any Mortgage File should include any of the documents
specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection
with making the
certifications required hereunder, to the extent a title search or
opinion of
counsel has been provided in lieu of a title policy for any
Mortgage Loan, the
Trustee shall only be responsible for confirming that a title
search or opinion
of counsel has been provided for such Mortgage Loan and shall not
be deemed to
have certified that the content of the title search or opinion of
counsel is
sufficient to meet the requirements of Section 2.01(b)(v).
Section 2.03 Representations, Warranties and Covenants of the
Servicer. The Servicer hereby makes the following representations
and warranties
to the Depositor and the Trustee, as of the Closing Date:
(i) The Servicer is a national banking association duly
organized,
validly
existing, and in good standing under the federal laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted and is licensed, qualified and in good
standing
in each of the states where a Mortgaged Property is located if
the laws
of such state require licensing or qualification in order to
conduct
business of the type conducted by the Servicer. The 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 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 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 creditors' rights generally or creditors of
national
banks 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 Servicer to make this Agreement valid and binding upon
the
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 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 Servicer and will
not result
in the breach of any term or provision of the charter or
by-laws of
the 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 Servicer or its
property
is
subject, or result in the violation of any law, rule,
regulation,
order,
judgment or decree to which the Servicer or its property is
subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the Servicer, threatened against the 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 Servicer, or in any material impairment of the
right or
ability of the 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 Servicer contemplated herein, or
which
would materially impair the ability of the Servicer to perform
under
the terms
of this Agreement.
The
representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the
Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as
to
the Mortgage Loans. The Depositor hereby represents and warrants to
the Trustee
with respect to the Mortgage Loans or each Mortgage Loan, as the
case may be, as
of the date hereof or such other date set forth herein that as of
the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule is
true
and
correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including
assessments
payable in
future installments or other outstanding charges affecting the
lien
priority of the related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not
been
impaired,
waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office
if
necessary
to maintain the lien priority of the Mortgage, and which have
been
delivered to the Trustee; the substance of any such waiver,
alteration
or modification has been approved by the insurer under the
Primary
Insurance Policy, if any, the title insurer, to the extent
required
by the related policy, and is reflected on the Mortgage Loan
Schedule. No
instrument of waiver, alteration or modification has been
executed,
and no Mortgagor has been released, in whole or in part, except
in
connection with an assumption agreement approved by the insurer
under
the
Primary Insurance Policy, if any, the title insurer, to the
extent
required
by the policy, and which assumption agreement has been
delivered
to the
Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any
right
of
rescission, set-off, counterclaim or defense, including the defense
of
usury, nor
will the operation of any of the terms of the Mortgage Note and
the
Mortgage, or the exercise of any right thereunder, render either
the
Mortgage
Note or the Mortgage unenforceable, in whole or in part, or
subject to
any right of rescission, set-off, counterclaim or defense,
including
the defense of usury and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by an
insurer
generally acceptable to prudent mortgage lending institutions
against
loss by fire, hazards of extended coverage and such other
hazards
as are
customary in the area the Mortgaged Property is located,
pursuant
to
insurance policies conforming to the requirements of Customary
Servicing
Procedures and this Agreement. All such insurance policies
contain a
standard mortgagee clause naming the originator of the Mortgage
Loan, its
successors and assigns as mortgagee and all premiums thereon
have been
paid. If the Mortgaged Property is in an area identified on a
flood
hazard map or flood insurance rate map issued by the Federal
Emergency
Management Agency as having special flood hazards (and such
flood
insurance has been made available), a flood insurance policy
meeting
the
requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the
requirements of
FNMA or
FHLMC. The Mortgage obligates the Mortgagor thereunder to
maintain
all such
insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage
to
maintain
such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor.
(vi) Any and all requirements of any federal, state or local
law
including,
without limitation, usury, truth in lending, real estate
settlement
procedures, consumer credit protections, all applicable
predatory
and abusive lending laws, equal credit opportunity or
disclosure
laws
applicable to the origination and servicing of Mortgage Loan
have
been
complied with.
(vii) The Mortgage has not been satisfied, canceled, subordinated
or
rescinded,
in whole or in part (other than as to Principal Prepayments in
full which
may have been received prior to the Closing Date), and the
Mortgaged
Property has not been released from the lien of the Mortgage,
in
whole or
in part, nor has any instrument been executed that would effect
any such
satisfaction, cancellation, subordination, rescission or
release.
(viii) The Mortgage is a valid, existing and enforceable first
lien
on the
Mortgaged Property, including all improvements on the Mortgaged
Property
subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions
and
restrictions, rights of way, easements and other matters of the
public
record as
of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's
title
insurance
policy delivered to the originator of the Mortgage Loan and
which do
not adversely affect the Appraised Value of the Mortgaged
Property,
(C) if the Mortgaged Property consists of Co-op Shares, any
lien
for
amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents
or
maintenance expenses secured by the real property owned by the
cooperative
housing
corporation, and (D) other matters to which like properties are
commonly
subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use,
enjoyment,
value or marketability of the related Mortgaged Property. Any
security
agreement, chattel mortgage or equivalent document related to
and
delivered
in connection with the Mortgage Loan establishes and creates a
valid,
existing and enforceable first lien and first priority security
interest
on the property described therein and the Depositor has the
full
right to
sell and assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine and
each
is the
legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms 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.
(x) All parties to the Mortgage Note and the Mortgage had legal
capacity
to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage
have been
duly and properly executed by such parties.
(xi) The proceeds of the Mortgage Loan have been fully disbursed
to
or for the
account of the Mortgagor and there is no obligation for the
Mortgagee
to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site
improvements and
as to
disbursements of any escrow funds therefor have been complied
with.
All costs,
fees and expenses incurred in making or closing the Mortgage
Loan and
the recording of the Mortgage have been paid, and the Mortgagor
is not entitled
to any refund of any amounts paid or due to the Mortgagee
pursuant
to the Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties
which
have had
any interest in the Mortgage Loan, whether as mortgagee,
assignee,
pledgee or otherwise, are (or, during the period in which they
held and
disposed of such interest, were) in compliance with any and all
applicable
"doing business" and licensing requirements of the laws of the
state
wherein the Mortgaged Property is located.
(xiii)(A) the Mortgage Loan is covered by an ALTA lender's
title
insurance
policy, acceptable to FNMA or FHLMC, issued by a title insurer
acceptable
to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring
(subject to
the
exceptions contained in (viii)(A) and (B) above) the Seller,
its
successors
and assigns as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan, (B) a title search
has
been done
showing no lien (other than the exceptions contained in
(viii)(A)
and (B) above) on the related Mortgaged Property senior to the
lien of
the Mortgage or (C) in the case of any Mortgage Loan secured by
a
Mortgaged
Property located in a jurisdiction where such policies are
generally
not available, an opinion of counsel of the type customarily
rendered
in such jurisdiction in lieu of title insurance is instead
received.
For each Mortgage Loan covered by a title insurance policy (x)
the
Depositor is the sole insured of such lender's title insurance
policy,
and such
lender's title insurance policy is in full force and effect and
will be in
full force and effect upon the consummation of the transactions
contemplated by this Agreement and (y) no claims have been made
under such
lender's
title insurance policy, and the Depositor has not done, by act
or
omission,
anything which would impair the coverage of such lender's title
insurance
policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and
no event
which,
with the passage of time or with notice and the expiration of
any
grace or
cure period, would constitute a default, breach, violation or
event of
acceleration, and the Seller has not waived any default,
breach,
violation
or event of acceleration.
(xv) As of the date of origination of the Mortgage Loan, there
had
been no
mechanics' or similar liens or claims filed for work, labor or
material
(and no rights are outstanding that under law could give rise
to
such lien)
affecting the relating Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage.
(xvi) All improvements which were considered in determining the
Appraised Value
of the related Mortgaged Property lay wholly within the
boundaries
and building restriction lines of the Mortgaged Property, and
no
improvements on adjoining properties encroach upon the
Mortgaged
Property.
(xvii) The
Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union,
insurance
company,
or similar institution which is supervised and examined by a
federal or
state authority, or by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the
National
Housing Act.
(xviii) Principal payments on the Mortgage Loan commenced no
more
than sixty
days after the proceeds of the Mortgaged Loan were disbursed.
The
Mortgage Loans are 10 to 30-year fixed rate mortgage loans having
an
original
term to maturity of not more than 30 years, with interest
payable
in arrears
on the first day of the month. Each Mortgage Note requires a
monthly
payment which is sufficient to fully amortize the original
principal
balance over the original term thereof and to pay interest at
the
related Mortgage Interest Rate. The Mortgage Note does not
permit
negative
amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge,
threatened for the total or partial condemnation of the
Mortgaged
Property. The Mortgaged Property is in good repair and is
undamaged
by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or
other casualty, so as to affect adversely the value of the
Mortgaged
Property as security for the Mortgage Loan or the use for which
the
premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary
and
enforceable provisions such as to render the rights and remedies of
the
holder
thereof adequate for the realization against the Mortgaged
Property
of the
benefits of the security provided thereby, including (A) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(B)
otherwise by judicial foreclosure. To the best of the
Depositor's
knowledge,
following the date of origination of the Mortgage Loan, the
Mortgaged
Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for
protection
under
applicable bankruptcy laws. There is no homestead or other
exemption
or right
available to the Mortgagor or any other person which would
interfere
with the right to sell the Mortgaged Property at a trustee's
sale or
the right to foreclose the Mortgage.
(xxi) Other than any Borrowers Protection Plan(R) addendum to
the
Mortgage
Note of a BPP Mortgage Loan, the Mortgage Note and Mortgage are
on forms
acceptable to FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by any
collateral
except the lien of the corresponding Mortgage on the Mortgaged
Property
and the security interest of any applicable security agreement
or
chattel
mortgage referred to in (viii) above.
(xxiii) Each appraisal of the related Mortgaged Property, is in
a
form
acceptable to FNMA or FHLMC and such appraisal complies with
the
requirements of FIRREA, and was made and signed, prior to the
approval of
the
Mortgage Loan application, by a Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust, a
trustee,
duly qualified under applicable law to serve as such, has been
properly
designated and currently so serves, and no fees or expenses are
or will
become payable by the Trustee to the trustee under the deed of
trust,
except in connection with a trustee's sale after default by the
Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan, no
Mortgage
Loan has a shared appreciation or other contingent interest
feature,
and no more than 0.26%, 0.00%, 0.00%, 0.00% and 0.51% (by
Cut-off
Date
Principal Balance) of the Group 1, Group 2, Group 3, Group 4
and
Group 5
Mortgage Loans, respectively, are Buy-Down Mortgage Loans.
(xxvi) The Mortgagor has received all disclosure materials
required
by
applicable law with respect to the making of mortgage loans of the
same
type as
the Mortgage Loan and rescission materials required by
applicable
law if the
Mortgage Loan is a Refinance Mortgage Loan.
(xxvii) Each Primary Insurance Policy to which any Mortgage Loan
is
subject
will be issued by an insurer acceptable to FNMA or FHLMC, which
insures
that portion of the Mortgage Loan in excess of the portion of
the
Appraised
Value of the Mortgaged Property required by FNMA. All
provisions
of such
Primary Insurance Policy have been and are being complied with,
such
policy is in full force and effect, and all premiums due
thereunder
have been
paid. Any Mortgage subject to any such Primary Insurance Policy
obligates
the Mortgagor thereunder to maintain such insurance and to pay
all
premiums and charges in connection therewith at least until
Loan-to-Value Ratio of such Mortgage Loan is reduced to less than
80%. The
Mortgage
Interest Rate for the Mortgage Loan does not include any such
insurance
premium.
(xxviii) To the best of the Depositor's knowledge as of the date
of
origination of
the Mortgage Loan, (A) the Mortgaged Property is lawfully
occupied
under applicable law, (B) all inspections, licenses and
certificates required to be made or issued with respect to all
occupied
portions
of the Mortgaged Property and, with respect to the use and
occupancy
of the same, including but not limited to certificates of
occupancy,
have been made or obtained from the appropriate authorities and
(C) no
improvement located on or part of the Mortgaged Property is in
violation
of any zoning law or regulation.
(xxix) The Assignment of Mortgage (except with respect to any
Mortgage
that has been recorded in the name of MERS or its designee) is
in
recordable
form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(xxx) All payments required to be made prior to the Cut-off Date
for
such
Mortgage Loan under the terms of the Mortgage Note have been made
and
no
Mortgage Loan has been more than 30 days delinquent more than once
in
the twelve
month period immediately prior to the Cut-off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or
Servicer
is in
possession of a complete Mortgage File except for the documents
which have
been delivered to the Trustee or which have been submitted for
recording
and not yet returned.
(xxxii) 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.
(xxxiii) Any future advances made prior to the Cut-off Date
have
been
consolidated with the outstanding principal amount secured by
the
Mortgage, and
the secured principal amount, as consolidated, bears a
single
interest rate and single repayment term. The lien of the
Mortgage
securing
the consolidated principal amount is expressly insured as
having
first lien
priority by a title insurance policy, an endorsement to the
policy
insuring the mortgagee's consolidated interest or by other
title
evidence
acceptable to FNMA and FHLMC. The consolidated principal amount
does not
exceed the original principal amount of the Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with
the
applicable
Underwriting Guidelines in effect at the time of origination
with
exceptions thereto exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term
residential
lease, (1)
the lessor under the lease holds a fee simple interest in the
land; (2)
the terms of such lease expressly permit the mortgaging of the
leasehold
estate, the assignment of the lease without the lessor's
consent
and the
acquisition by the holder of the Mortgage of the rights of the
lessee
upon foreclosure or assignment in lieu of foreclosure or
provide
the holder
of the Mortgage with substantially similar protections; (3) the
terms of
such lease do not (a) allow the termination thereof upon the
lessee's
default without the holder of the Mortgage being entitled to
receive
written notice of, and opportunity to cure, such default, (b)
allow the
termination of the lease in the event of damage or destruction
as long as
the Mortgage is in existence, (c) prohibit the holder of the
Mortgage
from being insured (or receiving proceeds of insurance) under
the
hazard
insurance policy or policies relating to the Mortgaged Property
or
(d) permit
any increase in the rent other than pre-established increases
set forth
in the lease; (4) the original term of such lease in not less
than 15
years; (5) the term of such lease does not terminate earlier
than
five years
after the maturity date of the Mortgage Note; and (6) the
Mortgaged
Property is located in a jurisdiction in which the use of
leasehold
estates in transferring ownership in residential properties is
a
widely
accepted practice.
(xxxvi) The Mortgaged Property is located in the state identified
in
the
Mortgage Loan Schedule and consists of a parcel of real property
with
a detached
single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit, or an
individual
unit in a
planned unit development, or, in the case of Mortgage Loans
secured by
Co-op Shares, leases or occupancy agreements; provided,
however,
that any condominium project or planned unit development
generally
conforms with the applicable Underwriting Guidelines regarding
such
dwellings, and no residence or dwelling is a mobile home or a
manufactured dwelling.
(xxxvii) The Depositor used no adverse selection procedures in
selecting
the Mortgage Loan for inclusion in the Trust Estate.
(xxxviii) Each Mortgage Loan is a "qualified mortgage" within
Section
860G(a)(3) of the Code.
(xxxix) With respect to each Mortgage where a lost note
affidavit
has been
delivered to the Trustee in place of the related Mortgage Note,
the
related Mortgage Note is no longer in existence.
(xl) No Mortgage Loan is a "high cost" loan as defined under
any
federal,
state or local law applicable to such Mortgage Loan at the time
of its
origination.
(xli) No Mortgage Loan (other than a Mortgage Loan that is a
New
Jersey
covered purchase loan originated on or after November 27, 2003
through
July 6, 2004) is a High Cost Loan or Covered Loan, as
applicable
(as such
terms are defined in S&P's LEVELS(R) Glossary which is now
Version
5.6 Revised, Appendix E) and no Mortgage Loan originated on or
after
October 1, 2002 through March 6, 2003 is governed by the
Georgia
Fair
Lending Act.
Notwithstanding the foregoing, no representations or warranties
are
made by the Depositor as to the environmental condition of any
Mortgaged
Property; the absence, presence or effect of hazardous wastes or
hazardous
substances on any Mortgaged Property; any casualty resulting from
the presence
or effect of hazardous wastes or hazardous substances on, near or
emanating from
any Mortgaged Property; the impact on Certificateholders of any
environmental
condition or presence of any hazardous substance on or near any
Mortgaged
Property; or the compliance of any Mortgaged Property with any
environmental
laws, nor is any agent, Person or entity otherwise affiliated with
the Depositor
authorized or able to make any such representation, warranty or
assumption of
liability relative to any Mortgaged Property. In addition, no
representations or
warranties are made by the Depositor with respect to the absence or
effect of
fraud in the origination of any Mortgage Loan.
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.
Upon discovery by either the Depositor, the Servicer, the Trustee
or
the Custodian that any of the representations and warranties set
forth in this
Section 2.04 is not accurate (referred to herein as a "breach") and
that such
breach materially and adversely affects the interests of the
Certificateholders
in the related Mortgage Loan, the party discovering such breach
shall give
prompt written notice to the other parties (any Custodian being so
obligated
under a Custodial Agreement); provided that any such breach that
causes the
Mortgage Loan not to be a "qualified mortgage" within the meaning
of Section
860G(a)(3) of the Code shall be deemed to materially and adversely
affect the
interests of the Certificateholders. Within 90 days of its
discovery or its
receipt of notice of any such breach, the Depositor shall cure such
breach in
all material respects or shall either (i) repurchase the Mortgage
Loan or any
property acquired in respect thereof from the Trustee at a price
equal to the
Repurchase Price or (ii) if within two years of the Closing Date,
substitute for
such Mortgage Loan in the manner described in Section 2.02;
provided that if the
breach would cause the Mortgage Loan to be other than a "qualified
mortgage" as
defined in Section 860G(a)(3) of the Code, any such repurchase or
substitution
must occur within 90 days from the date the breach was discovered.
In addition
to the foregoing. if a breach of the representation set forth in
clause (vi) or
(xli) of this Section 2.04 occurs as a result of a violation of an
applicable
predatory or abusive lending law, the Depositor shall reimburse the
Trust for
all costs or damages incurred by the Trust as a result of the
violation of such
law (such amount, the "Reimbursement Amount"). The Repurchase Price
of any
repurchase described in this paragraph, the Substitution Adjustment
Amount, if
any, and any Reimbursement Amount shall be deposited in the
Servicer Custodial
Account. It is understood and agreed that, except with respect to
the second
preceding sentence, the obligation of the Depositor to repurchase
or substitute
for any Mortgage Loan or Mortgaged Property as to which such a
breach has
occurred and is continuing shall constitute the sole remedy
respecting such
breach available to Certificateholders, or to the Trustee on behalf
of
Certificateholders, and such obligation shall survive until
termination of the
Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Class A Certificates (other than
the Class
1-A-R, Class 1-A-MR, Class 1-A-LR, Class X-PO and Class 30-IO
Certificates) and
the Classes of Class X-B, Class 2-B and Class 5-B Certificates and
each
Component as "regular interests" and the Class 1-A-R Certificate as
the single
class of "residual interest" in the Upper-Tier REMIC for the
purposes of Code
Sections 860G(a)(1) and 860G(a)(2), respectively. The Depositor
hereby further
designates the Class 1-L Interest, Class 1-LS Interest, Class 1-LIO
Interest,
Class 1-LPO Interest, Class 2-L Interest, Class 2-LIO Interest,
Class 2-LPO
Interest, Class 3-L Interest, Class 3-LS Interest, Class 3-LIO
Interest, Class
3-LPO Interest, Class 4-L Interest, Class 4-LS Interest, Class
4-LIO Interest,
Class 4-LPO Interest, Class 5-L Interest, Class 5-LIO Interest and
Class 5-LPO
Interest as classes of "regular interests" and the Class 1-A-LR
Certificate as
the single class of "residual interest" in the Lower-Tier REMIC for
the purposes
of Code Sections 860G(a)(1) and 860G(a)(2), respectively. The
Depositor hereby
further designates the Class 1-A-M1 Interest, Class 1-A-M4
Interest, Class
1-A-M10 Interest, Class 1-A-M13 Interest, Class 1-A-M14 Interest,
Class 1-A-MUR
Interest, Class 2-A-M1 Interest, Class 3-A-M1 Interest, Class
4-A-M1 Interest,
Class 5-A-M1 Interest, Class 1-X-MPO Interest, Class 2-X-MPO
Interest, Class
3-X-MPO Interest, Class15-MPO Interest, Class 5-PO Interest, Class
1-30-MIO
Interest, Class 2-30-MIO Interest, Class 20-MIO Interest, Class
15-MIO Interest,
Class 5-MIO Interest, Class X-B-M1 Interest, Class X-B-M2 Interest,
Class X-B-M3
Interest, Class X-B-M4 Interest, Class X-B-M5 Interest, Class
X-B-M6 Interest,
Class 2-B-M1 Interest, Class 2-B-M2 Class 2-B-M3 Interest, Class
2-B-M4
Interest, Class 2-B-M5 Interest, Class 2-B-M6 Interest, Class
5-B-M1 Interest,
Class 5-B-M2 Interest, Class 5-B-M3 Interest, Class 5-B-M4
Interest, Class
5-B-M5 Interest and Class 5-B-M6 Interest as classes of "regular
interests" and
the Class 1-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.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each of the Upper-Tier REMIC,
Middle-Tier
REMIC and Lower-Tier REMIC within the meaning of Section 860G(a)(9)
of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the "latest
possible maturity date" of the regular interests in the Upper-Tier
REMIC,
Middle-Tier REMIC and Lower-Tier REMIC is January 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Trustee
(i)
acknowledges the issuance of and hereby declares that it holds
the
Uncertificated Lower-Tier Interests on behalf of the Middle-Tier
REMIC and the
Certificateholders and that it holds the Uncertificated Middle-Tier
Interests on
behalf of the Upper-Tier REMIC and the Certificateholders and (ii)
has executed
and delivered to or upon the order of the Depositor, in exchange
for the
Mortgage Loans, Uncertificated Lower-Tier Interests and
Uncertificated
Middle-Tier Interests, together with all other assets included in
the definition
of "Trust Estate," receipt of which is hereby acknowledged,
Certificates in
authorized denominations which, together with the Uncertificated
Middle-Tier
Interests and Uncertificated Lower-Tier Interests, evidence
ownership of the
entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on
behalf
of the Certificateholders, the Servicer shall service and
administer the
Mortgage Loans, all in accordance with the terms of this Agreement,
Customary
Servicing Procedures, applicable law and the terms of the Mortgage
Notes and
Mortgages. In connection with such servicing and administration,
the Servicer
shall have full power and authority, acting alone and/or through
Subservicers as
provided in Section 3.02, to do or cause to be done any and all
things that it
may deem necessary or desirable in connection with such servicing
and
administration including, but not limited to, the power and
authority, subject
to the terms hereof, (a) to execute and deliver, on behalf of
the
Certificateholders and the Trustee, customary consents or waivers
and other
instruments and documents, (b) to consent, with respect to the
Mortgage Loans it
services, to transfers of any Mortgaged Property and assumptions of
the Mortgage
Notes and related Mortgages (but only in the manner provided in
this Agreement),
(c) to collect any Insurance Proceeds and other Liquidation
Proceeds relating to
the Mortgage Loans it services, and (d) to effectuate foreclosure
or other
conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan
it services. The Servicer shall represent and protect the interests
of the Trust
in the same manner as it protects its own interests in mortgage
loans in its own
portfolio in any claim, proceeding or litigation regarding a
Mortgage Loan and
shall not make or permit any modification, waiver or amendment of
any term of
any Mortgage Loan, except as provided pursuant to Section 3.21.
Without limiting
the generality of the foregoing, the Servicer, in its own name or
in the name of
any Subservicer or the Depositor and the Trustee, is hereby
authorized and
empowered by the Depositor and the Trustee, when the Servicer or
any
Subservicer, as the case may be, believes it appropriate in its
reasonable
judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the
Certificateholders or any of them, any and all instruments of
satisfaction or
cancellation, or of partial or full release or discharge, and all
other
comparable instruments, with respect to the Mortgage Loans it
services, and with
respect to the related Mortgaged Properties held for the benefit of
the
Certificateholders. The Servicer shall prepare and deliver to the
Depositor
and/or the Trustee such documents requiring execution and delivery
by either or
both of them as are necessary or appropriate to enable the Servicer
to service
and administer the Mortgage Loans it services to the extent that
the Servicer is
not permitted to execute and deliver such documents pursuant to the
preceding
sentence. Upon receipt of such documents, the Depositor and/or the
Trustee, upon
the direction of the Servicer, shall promptly execute such
documents and deliver
them to the Servicer.
In accordance with the standards of the preceding paragraph,
the
Servicer shall advance or cause to be advanced funds as necessary
for the
purpose of effecting the payment of taxes and assessments on the
Mortgaged
Properties relating to the Mortgage Loans it services, which
Servicing Advances
shall be reimbursable in the first instance from related
collections from the
Mortgagors pursuant to Section 3.09, and further as provided in
Section 3.11.
The costs incurred by the Servicer, if any, in effecting the timely
payments of
taxes and assessments on the Mortgaged Properties and related
insurance premiums
shall not, for the purpose of calculating monthly distributions to
the
Certificateholders, be added to the Stated Principal Balances of
the related
Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement) to the Trustee 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 Subservicing; Enforcement of the Obligations of
Servicer. (a) The Servicer may arrange for the subservicing of any
Mortgage Loan
it services by a Subservicer pursuant to a Subservicing Agreement;
provided,
however, that such subservicing arrangement and the terms of the
related
Subservicing Agreement must provide for the servicing of such
Mortgage Loan in a
manner consistent with the servicing arrangements contemplated
hereunder.
Notwithstanding the provisions of any Subservicing Agreement, any
of the
provisions of this Agreement relating to agreements or arrangements
between the
Servicer and a Subservicer or reference to actions taken through a
Subservicer
or otherwise, the Servicer shall remain obligated and liable to the
Depositor,
the Trustee and the Certificateholders for the servicing and
administration of
the Mortgage Loans it services in accordance with the provisions of
this
Agreement without diminution of such obligation or liability by
virtue of such
Subservicing Agreements or arrangements or by virtue of
indemnification from the
Subservicer and to the same extent and under the same terms and
conditions as if
the Servicer alone were servicing and administering those Mortgage
Loans. All
actions of each Subservicer performed pursuant to the related
Subservicing
Agreement shall be performed as agent of the Servicer with the same
force and
effect as if performed directly by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed
to
have received any collections, recoveries or payments with respect
to the
Mortgage Loans it services that are received by a Subservicer
regardless of
whether such payments are remitted by the Subservicer to the
Servicer.
(c) As part of its servicing activities hereunder, the Servicer,
for
the benefit of the Trustee and the Certificateholders, shall use
its best
reasonable efforts to enforce the obligations of each Subservicer
engaged by the
Servicer under the related Subservicing Agreement, to the extent
that the
non-performance of any such obligation would have a material and
adverse effect
on a Mortgage Loan. Such enforcement, including, without
limitation, the legal
prosecution of claims, termination of Subservicing 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 Servicer, in its good faith business
judgment,
would require were it the owner of the related Mortgage Loans. The
Servicer
shall pay the costs of such enforcement at its own expense, and
shall be
reimbursed therefor only (i) from a general recovery resulting from
such
enforcement to the extent, if any, that such recovery exceeds all
amounts due in
respect of the related Mortgage Loan or (ii) from a specific
recovery of costs,
expenses or attorneys fees against the party against whom such
enforcement is
directed.
(d) Any Subservicing Agreement entered into by the Servicer
shall
provide that it may be assumed or terminated by the Trustee, if the
Trustee has
assumed the duties of the Servicer, or any successor Servicer, at
the Trustee's
or successor Servicer's option, as applicable, without cost or
obligation to the
assuming or terminating party or the Trust Estate, upon the
assumption by such
party of the obligations of the Servicer pursuant to Section
8.05.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
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 acting in any capacity requiring such
persons to
handle funds, money, documents or papers relating to the Mortgage
Loans it
services. These policies must insure the Servicer against losses
resulting from
dishonest or fraudulent acts committed by the Servicer's personnel,
any
employees of outside firms that provide data processing services
for the
Servicer, and temporary contract employees or student interns. Such
fidelity
bond shall also protect and insure the Servicer against losses in
connection
with the release or satisfaction of a Mortgage Loan without having
obtained
payment in full of the indebtedness secured thereby. No provision
of this
Section 3.03 requiring such fidelity bond and errors and omissions
insurance
shall diminish or relieve the 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 Servicer by express waiver of FNMA or FHLMC.
Section 3.04 Access to Certain Documentation. The Servicer
shall
provide to the OTS and the FDIC and to comparable regulatory
authorities
supervising Holders of Subordinate Certificates and the examiners
and
supervisory agents of the OTS, the FDIC and such other authorities,
access to
the documentation required by applicable regulations of the OTS and
the FDIC
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 Servicer. Nothing
in this
Section 3.04 shall limit the obligation of the Servicer to observe
any
applicable law and the failure of the Servicer to provide access as
provided in
this Section 3.04 as a result of such obligation shall not
constitute a breach
of this Section 3.04.
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments. With respect to each
Mortgage Loan
with a Loan-to-Value Ratio in excess of 80% or such other
Loan-to-Value Ratio as
may be required by law, the Servicer shall, without any cost to the
Trust
Estate, maintain or cause the Mortgagor to maintain in full force
and effect a
Primary Insurance Policy insuring that portion of the Mortgage Loan
in excess of
a percentage in conformity with FNMA requirements. The Servicer
shall pay or
shall cause the Mortgagor to pay the premium thereon on a timely
basis, at least
until the Loan-to-Value Ratio of such Mortgage Loan is reduced to
80% or such
other Loan-to-Value Ratio as may be required by law. If such
Primary Insurance
Policy is terminated, the Servicer shall obtain from another
insurer a
comparable replacement policy, with a total coverage equal to the
remaining
coverage of such terminated Primary Insurance Policy. If the
insurer shall cease
to be an insurer acceptable to FNMA or FHLMC, the Servicer shall
notify the
Trustee in writing, it being understood that the Servicer shall not
have any
responsibility or liability for any failure to recover under the
Primary
Insurance Policy for such reason. If the Servicer determines that
recoveries
under the Primary Insurance Policy are jeopardized by the financial
condition of
the insurer, the Servicer shall obtain from another insurer which
meets the
requirements of this Section 3.05 a replacement insurance policy.
The Servicer
shall not take any action that would result in noncoverage under
any applicable
Primary Insurance Policy of any loss that, but for the actions of
the Servicer,
would have been covered thereunder. In connection with any
assumption or
substitution agreement entered into or to be entered into pursuant
to Section
3.13, the Servicer shall promptly notify the insurer under the
related Primary
Insurance Policy, if any, of such assumption or substitution of
liability in
accordance with the terms of such Primary Insurance Policy and
shall take all
actions which may be required by such insurer as a condition to the
continuation
of coverage under such Primary Insurance Policy. If such Primary
Insurance
Policy is terminated as a result of such assumption or substitution
of
liability, the Servicer shall obtain a replacement Primary
Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer
agrees
to prepare and present, on behalf of itself, the Trustee and
the
Certificateholders, claims to the insurer under any Primary
Insurance Policy in
a timely fashion in accordance with the terms of such Primary
Insurance Policy
and, in this regard, to take such action as shall be necessary to
permit
recovery under any Primary Insurance Policy respecting a defaulted
Mortgage
Loan. Pursuant to Section 3.09(a), any amounts collected by the
Servicer under
any Primary Insurance Policy shall be deposited in the related
Escrow Account,
subject to withdrawal pursuant to Section 3.09(b).
The Servicer will comply with all provisions of applicable state
and
federal law relating to the cancellation of, or collection of
premiums with
respect to, Primary Mortgage Insurance, including, but not limited
to, the
provisions of the Homeowners Protection Act of 1998, and all
regulations
promulgated thereunder, as amended from time to time.
The Servicer shall take all actions necessary to collect, on
behalf
of the Trust, any BPP Mortgage Loan Payments required to be made to
the Trust
pursuant to the Mortgage Loan Purchase Agreement.
Section 3.06 Rights of the Depositor and the Trustee in Respect
of
the Servicer. The Depositor may, but is not obligated to, enforce
the
obligations of the Servicer hereunder and may, but is not obligated
to, perform,
or cause a designee to perform, any defaulted obligation of the
Servicer
hereunder and in connection with any such defaulted obligation to
exercise the
related rights of the Servicer hereunder; provided that the
Servicer shall not
be relieved of any of its obligations hereunder by virtue of such
performance by
the Depositor or its designee. Neither the Trustee nor the
Depositor shall have
any responsibility or liability for any action or failure to act by
the Servicer
nor shall the Trustee or the Depositor be obligated to supervise
the performance
of the Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a
Subservicer
in its capacity as such shall be deemed to be between the
Subservicer and the
Servicer alone, and the Trustee and Certificateholders shall not be
deemed
parties thereto and shall have no claims, rights, obligations,
duties or
liabilities with respect to the Subservicer except as set forth in
Section 3.07.
The Servicer shall be solely liable for all fees owed by it to any
Subservicer,
irrespective of whether the Servicer's compensation pursuant to
this Agreement
is sufficient to pay such fees.
Section 3.07 Trustee to Act as Servicer. If the Servicer shall
for
any reason no longer be the 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 Servicer to assume, all of the
rights and
obligations of the Servicer hereunder arising thereafter (except
that the
Trustee shall not be (a) liable for losses of the Servicer pursuant
to Section
3.12 or any acts or omissions of the predecessor Servicer
hereunder, (b)
obligated to make Advances if it is prohibited from doing so by
applicable law
or (c) deemed to have made any representations and warranties of
the Servicer
hereunder). Any such assumption shall be subject to Sections 7.02
and 8.05. If
the Servicer shall for any reason no longer be the Servicer
(including by reason
of any Event of Default), the Trustee or the successor Servicer may
elect to
succeed to any rights and obligations of the Servicer under each
Subservicing
Agreement or may terminate each Subservicing Agreement. If it has
elected to
assume the Subservicing Agreement, the Trustee or the successor
Servicer shall
be deemed to have assumed all of the Servicer's interest therein
and to have
replaced the Servicer as a party to any Subservicing Agreement
entered into by
the Servicer as contemplated by Section 3.02 to the same extent as
if the
Subservicing Agreement had been assigned to the assuming party
except that the
Servicer shall not be relieved of any liability or obligations
under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall,
upon
request of the Trustee, but at the expense of such predecessor
Servicer, deliver
to the assuming party all documents and records relating to each
Subservicing
Agreement or substitute servicing agreement and the Mortgage Loans
then being
serviced thereunder 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 Subservicing Agreement to the assuming party. The
Trustee shall
be entitled to be reimbursed from the predecessor Servicer (or the
Trust if the
predecessor Servicer is unable to fulfill its obligations
hereunder) for all
Servicing Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Account; and Certificate Account. (a) Continuously from
the date
hereof until the principal and interest on all Mortgage Loans are
paid in full,
the Servicer will proceed diligently, in accordance with this
Agreement, to
collect all payments due under each of the Mortgage Loans it
services when the
same shall become due and payable. Further, the Servicer will in
accordance with
all applicable law and Customary Servicing Procedures ascertain and
estimate
taxes, assessments, fire and hazard insurance premiums, mortgage
insurance
premiums and all other charges with respect to the Mortgage Loans
it services
that, as provided in any Mortgage, will become due and payable to
the end that
the installments payable by the Mortgagors will be sufficient to
pay such
charges as and when they become due and payable. Consistent with
the foregoing,
the Servicer may in its discretion (i) waive any late payment
charge or any
prepayment charge or penalty interest in connection with the
prepayment of a
Mortgage Loan it services and (ii) extend the due dates for
payments due on a
Mortgage Note for a period not greater than 120 days; provided,
however, that
the Servicer cannot extend the maturity of any such Mortgage Loan
past the date
on which the final payment is due on the latest maturing Mortgage
Loan as of the
Cut-off Date. In the event of any such arrangement, the Servicer
shall make
Periodic Advances on the related Mortgage Loan in accordance with
the provisions
of Section 3.20 during the scheduled period in accordance with the
amortization
schedule of such Mortgage Loan without modification thereof by
reason of such
arrangements. The Servicer shall not be required to institute or
join in
litigation with respect to collection of any payment (whether under
a Mortgage,
Mortgage Note or otherwise or against any public or governmental
authority with
respect to a taking or condemnation) if it reasonably believes that
enforcing
the provision of the Mortgage or other instrument pursuant to which
such payment
is required is prohibited by applicable law.
(b) The Servicer shall establish and maintain the Servicer
Custodial
Account. The Servicer shall deposit or cause to be deposited into
the Servicer
Custodial Account, all on a daily basis within one Business Day of
receipt,
except as otherwise specifically provided herein, the following
payments and
collections remitted by Subservicers or received by the 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 with
respect to the
Mortgage Loans it services:
(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
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 3.09(a), and other than any Excess
Proceeds
and (B) any Insurance Proceeds released from an Escrow Account
pursuant to Section
3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant
to
Section
3.08(d) in connection with any losses on Permitted Investments
with
respect to the Servicer Custodial Account;
(v)
any amounts required to be deposited by the Servicer pursuant
to
Section
3.14;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts
and
all
Reimbursement Amounts, to the extent received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to
Section
3.20 and
any Compensating Interest;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to
Section
3.23;
and
(x) any other
amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer
Custodial
Account by the Servicer shall be exclusive, it being understood and
agreed that,
without limiting the generality of the foregoing, Ancillary Income
need not be
deposited by the Servicer. If the Servicer shall deposit in the
Servicer
Custodial Account any amount not required to be deposited, it may
at any time
withdraw or direct the institution maintaining the Servicer
Custodial Account to
withdraw such amount from the Servicer Custodial Account, any
provision herein
to the contrary notwithstanding. The Servicer Custodial Account may
contain
funds that belong to one or more trust funds created for mortgage
pass-through
certificates of other series and may contain other funds respecting
payments on
mortgage loans belonging to the Servicer or serviced by the
Servicer on behalf
of others; provided, however, that such commingling of funds shall
not be
permitted at any time during which Fitch's senior long-term
unsecured debt
rating of Bank of America is below "A." Notwithstanding such
commingling of
funds, the Servicer shall keep records that accurately reflect the
funds on
deposit in the Servicer Custodial Account that have been identified
by it as
being attributable to the Mortgage Loans it services. The Servicer
shall
maintain adequate records with respect to all withdrawals made
pursuant to this
Section 3.08. All funds required to be deposited in the Servicer
Custodial
Account shall be held in trust for the Certificateholders until
withdrawn in
accordance with Section 3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account, which shall be deemed
to consist of
seven sub-accounts. The Trustee shall, promptly upon receipt,
deposit in the
Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant
to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.08(d)
in
connection
with any losses on Permitted Investments with respect to the
Certificate Account; and
(iii) any other amounts deposited hereunder which are required to
be
deposited
in the Certificate Account.
If the Servicer shall remit any amount not required to be
remitted,
it may at any time direct the Trustee to withdraw such amount from
the
Certificate Account, any provision herein to the contrary
notwithstanding. Such
direction may be accomplished by delivering an Officer's
Certificate to the
Trustee which describes the amounts deposited in error in the
Certificate
Account. All funds required to be deposited in the Certificate
Account shall be
held by the Trustee in trust for the Certificateholders until
disbursed in
accordance with this Agreement or withdrawn in accordance with
Section 3.11. In
no event shall the Trustee incur liability for withdrawals from the
Certificate
Account at the direction of the Servicer.
(d) Each institution at which the Servicer Custodial Account or
the
Certificate Account is maintained shall invest the funds therein as
directed in
writing by the Servicer, in the case of the Servicer Custodial
Account, or the
Trustee, in the case of the Certificate Account, in Permitted
Investments, which
shall mature not later than (i) in the case of the Servicer
Custodial Account,
the Business Day next preceding the related Remittance 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
Remittance Date) and (ii) in the case of the Certificate Account,
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 Servicer Custodial Account
Reinvestment
Income shall be for the benefit of the Servicer as part of its
Servicing
Compensation and shall be retained by it monthly as provided
herein. All income
or gain (net of any losses) realized from any such investment of
funds on
deposit in the Certificate Account shall be for the benefit of the
Trustee as
additional compensation and shall be retained by it monthly as
provided herein.
The amount of any losses realized in the Servicer Custodial Account
or the
Certificate Account incurred in any such account in respect of any
such
investments shall promptly be deposited by the Servicer in the
Servicer
Custodial Account or by the Trustee in the Certificate Account, as
applicable.
(e) The Servicer shall give notice to the Trustee of any
proposed
change of the location of the Servicer Custodial Account maintained
by the
Servicer not later than 30 days and not more than 45 days prior to
any change
thereof. The Trustee shall give notice to the Servicer, each Rating
Agency and
the Depositor of any proposed change of the location of the
Certificate Account
not later than 30 days after and not more than 45 days prior to any
change
thereof. The creation of the Servicer Custodial Account shall be
evidenced by a
certification substantially in the form of Exhibit F hereto. A copy
of such
certification shall be furnished to the Trustee.
(f) The Trustee shall designate each of the Middle-Tier
Certificate
Sub-Account and the Upper-Tier Certificate Sub-Account as a
sub-account of the
Certificate Account. On each Distribution Date (other than the
Final
Distribution Date, if such Final Distribution Date is in connection
with a
purchase of the assets of the Trust Estate by the Depositor), the
Trustee shall,
from funds available on deposit in the Certificate Account, be
deemed to deposit
into the Middle-Tier Certificate Sub-Account, the Lower-Tier
Distribution
Amount. The Trustee shall then immediately, from funds available in
the
Middle-Tier Certificate Sub-Account, be deemed to deposit into the
Upper-Tier
Certificate Sub-Account, the Middle-Tier Distribution Amount.
Section 3.09 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts. (a) To the extent required by the related Mortgage
Note and not
violative of current law, the Servicer shall segregate and hold all
funds
collected and received pursuant to each Mortgage Loan which
constitute Escrow
Payments in trust separate and apart from any of its own funds and
general
assets and for such purpose shall establish and maintain one or
more escrow
accounts (collectively, the "Escrow Account"), titled "Bank of
America, N.A., in
trust for registered holders of Banc of America Mortgage
Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2004-11 and various
Mortgagors." The
Escrow Account shall be established with a commercial bank, a
savings bank or a
savings and loan association that meets the guidelines set forth by
FNMA or
FHLMC as an eligible institution for escrow accounts and which is a
member of
the Automated Clearing House. In any case, the Escrow Account shall
be insured
by the FDIC to the fullest extent permitted by law. The Servicer
shall deposit
in the appropriate Escrow Account on a daily basis, and retain
therein: (i) all
Escrow Payments collected on account of the Mortgage Loans, (ii)
all amounts
representing proceeds of any hazard insurance policy which are to
be applied to
the restoration or repair of any related Mortgaged Property and
(iii) all
amounts representing proceeds of any Primary Insurance Policy.
Nothing herein
shall require the Servicer to compel a Mortgagor to establish an
Escrow Account
in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts
may
be made by the Servicer only (i) to effect timely payment of taxes,
assessments,
mortgage insurance premiums, fire and hazard insurance premiums,
condominium or
PUD association dues, or comparable items constituting Escrow
Payments for the
related Mortgage, (ii) to reimburse the Servicer out of related
Escrow Payments
made with respect to a Mortgage Loan for any Servicing Advance made
by the
Servicer pursuant to Section 3.09(c) with respect to such Mortgage
Loan, (iii)
to refund to any Mortgagor any sums determined to be overages, (iv)
for transfer
to the Servicer Custodial Account upon default of a Mortgagor or in
accordance
with the terms of the related Mortgage Loan and if permitted by
applicable law,
(v) for application to restore or repair the Mortgaged Property,
(vi) to pay to
the Mortgagor, to the extent required by law, any interest paid on
the funds
deposited in the Escrow Account, (vii) to pay to itself any
interest earned on
funds deposited in the Escrow Account (and not required to be paid
to the
Mortgagor), (viii) to the extent permitted under the terms of the
related
Mortgage Note and applicable law, to pay late fees with respect to
any Monthly
Payment which is received after the applicable grace period, (ix)
to withdraw
suspense payments that are deposited into the Escrow Account, (x)
to withdraw
any amounts inadvertently deposited in the Escrow Account or (xi)
to clear and
terminate the Escrow Account upon the termination of this Agreement
in
accordance with Section 10.01. Any Escrow Account shall not be a
part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall
maintain
accurate records reflecting the status of taxes, assessments and
other charges
which are or may become a lien upon the Mortgaged Property and the
status of
Primary Insurance Policy premiums and fire and hazard insurance
coverage. The
Servicer shall obtain, from time to time, all bills for the payment
of such
charges (including renewal premiums) and shall effect payment
thereof prior to
the applicable penalty or termination date and at a time
appropriate for
securing maximum discounts allowable, employing for such purpose
deposits of the
Mortgagor in the Escrow Account, if any, which shall have been
estimated and
accumulated by the Servicer in amounts sufficient for such
purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does
not provide
for Escrow Payments, the Servicer shall determine that any such
payments are
made by the Mortgagor. The Servicer assumes full responsibility for
the timely
payment of all such bills and shall effect timely payments of all
such bills
irrespective of each Mortgagor's faithful performance in the
payment of same or
the making of the Escrow Payments. The Servicer shall advance any
such payments
that are not timely paid, but the Servicer shall be required so to
advance only
to the extent that such Servicing Advances, in the good faith
judgment of the
Servicer, will be recoverable by the Servicer out of Insurance
Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall afford 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
Servicer.
Upon reasonable advance notice in writing, the Servicer will
provide
to each Certificateholder which is a savings and loan association,
bank or
insurance company certain reports and reasonable access to
information and
documentation regarding the Mortgage Loans sufficient to permit
such
Certificateholder to comply with applicable regulations of the OTS
or other
regulatory authorities with respect to investment in the
Certificates; provided
that the Servicer shall be entitled to be reimbursed by each
such
Certificateholder for actual expenses incurred by the Servicer in
providing such
reports and access.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Account and Certificate Account. (a) The Servicer may from time to
time make
withdrawals from the Servicer Custodial Account, for the following
purposes:
(i) to pay to the Servicer (to the extent not previously
retained),
the Servicing
Compensation to which it is entitled pursuant to Section
3.17;
(ii) to reimburse the Servicer for unreimbursed Advances made by
it,
such right
of reimbursement pursuant to this clause (ii) being limited to
amounts
received on the Mortgage Loan(s) (including amounts received in
respect of
BPP Mortgage Loan Payments for such Mortgage Loan) in respect
of which
any such Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously
made, such right of reimbursement pursuant to this clause (iii)
being
limited to amounts received on the Mortgage Loans in the same
Loan
Group as
the Mortgage Loan(s) in respect of which such Nonrecoverable
Advance
was made;
(iv) to reimburse the Servicer for Insured Expenses from the
related
Insurance
Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02 or 2.04,
all
amounts
received thereon after the date of such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses
incurred
by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer
Custodial
Account
and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an
amount
equal to
the related Pool Distribution Amount, the related Trustee Fee
and
any other
amounts due to the Trustee under this Agreement for such
Distribution Date, to the extent on deposit, and remit such amount
in
immediately available funds to the Trustee for deposit in the
Certificate
Account;
and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying
any
withdrawal from the Servicer Custodial Account pursuant to clauses
(i), (ii),
(iv) and (v). The Servicer shall keep and maintain such separate
accounting for
each Loan Group. Prior to making any withdrawal from the Servicer
Custodial
Account pursuant to clause (iii), the Servicer shall deliver to the
Trustee an
Officer's Certificate of a Servicing Officer indicating the amount
of any
previous Advance determined by the Servicer to be a Nonrecoverable
Advance and
identifying the related Mortgage Loan(s) and their respective
portions of such
Nonrecoverable Advance.
(b) The Trustee shall be deemed to withdraw funds from the
applicable Certificate Account sub-accounts to deposit the
Lower-Tier
Distribution Amount into the Middle-Tier Certificate Sub-Account
and the
Middle-Tier Distribution Amount into the Upper-Tier Certificate
Sub-Account and
for distributions to Certificateholders in the manner specified in
this
Agreement. In addition, the Trustee may from time to time make
withdrawals from
the Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee and any other amounts due
to
the
Trustee under this Agreement for the related Distribution Date;
(ii) to pay to itself as additional compensation earnings on or
investment
income with respect to funds in the Certificate Account;
(iii) to withdraw and return to the Servicer any amount deposited
in
the
Certificate Account and not required to be deposited therein;
and
(iv) to clear and terminate the Certificate Account upon
termination
of this
Agreement pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be deposited in the Middle-Tier Certificate
Sub-Account
shall be used to make payments on the Class 1-A-MR Certificate as
provided in
Sections 5.01 and 5.02. On each Distribution Date, funds on deposit
in the
Upper-Tier Certificate Sub-Account shall be used to make payments
on the Regular
Certificates, the Class X-PO Certificates, the Class 30-IO
Certificates and the
Class 1-A-R Certificate as provided in Sections 5.01 and 5.02. The
Certificate
Account shall be cleared and terminated upon termination of this
Agreement
pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance. The Servicer
shall
cause to be maintained for each Mortgage Loan, fire and hazard
insurance with
extended coverage customary in the area where the Mortgaged
Property is located
in an amount which is at least equal to the lesser of (a) the full
insurable
value of the Mortgaged Property or (b) the greater of (i) the
outstanding
principal balance owing on the Mortgage Loan and (ii) an amount
such that the
proceeds of such insurance shall be sufficient to avoid the
application to the
Mortgagor or loss payee of any coinsurance clause under the policy.
If the
Mortgaged Property is in an area identified in the Federal Register
by the
Federal Emergency Management Agency as having special flood hazards
(and such
flood insurance has been made available) the Servicer will cause to
be
maintained a flood insurance policy meeting the requirements of the
current
guidelines of the Federal Insurance Administration and the
requirements of FNMA
or FHLMC. The Servicer shall also maintain on REO Property, fire
and hazard
insurance with extended coverage in an amount which is at least
equal to the
maximum insurable value of the improvements which are a part of
such property,
liability insurance and, to the extent required, flood insurance in
an amount
required above. Any amounts collected by the Servicer under any
such policies
(other than amounts to be deposited in an Escrow Account and
applied to the
restoration or repair of the property subject to the related
Mortgage or
property acquired in liquidation of the Mortgage Loan, or to be
released to the
Mortgagor in accordance with Customary Servicing Procedures) shall
be deposited
in the Servicer Custodial Account, subject to withdrawal pursuant
to Section
3.11(a). It is understood and agreed that no earthquake or other
additional
insurance need be required by the Servicer of any Mortgagor or
maintained on REO
Property, other than pursuant to such applicable laws and
regulations as shall
at any time be in force and as shall require such additional
insurance. All
policies required hereunder shall be endorsed with standard
mortgagee clauses
with loss payable to the Servicer, and shall provide for at least
30 days prior
written notice of any cancellation, reduction in amount or material
change in
coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by
a
unit in a condominium development or planned unit development shall
be
maintained with respect to such Mortgage Loan and the related
development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, the Servicer may maintain a
blanket
policy insuring against hazard losses on all of the Mortgaged
Properties
relating to the Mortgage Loans in lieu of maintaining the required
hazard
insurance policies for each Mortgage Loan and may maintain a
blanket policy
insuring against special flood hazards in lieu of maintaining any
required flood
insurance. Any such blanket policies shall (A) be consistent with
prudent
industry standards, (B) name the Servicer as loss payee, (C)
provide coverage in
an amount equal to the aggregate unpaid principal balance on the
related
Mortgage Loans without co-insurance, and (D) otherwise comply with
the
requirements of this Section 3.12. Any such blanket policy may
contain a
deductible clause; provided that if any Mortgaged Property is not
covered by a
separate policy otherwise complying with this Section 3.12 and a
loss occurs
with respect to such Mortgaged Property which loss would have been
covered by
such a policy, the Servicer shall deposit in the Servicer Custodial
Account the
difference, if any, between the amount that would have been payable
under a
separate policy complying with this Section 3.12 and the amount
paid under such
blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. (a) Except as otherwise provided in this Section 3.13,
when any
Mortgaged Property subject to a Mortgage has been conveyed by the
Mortgagor, the
Servicer shall use reasonable efforts, to the extent that it has
actual
knowledge of such conveyance, to enforce any due-on-sale clause
contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable
law and
governmental regulations, but only to the extent that such
enforcement will not
adversely affect or jeopardize coverage under any Required
Insurance Policy.
Notwithstanding the foregoing, the Servicer is not required to
exercise such
rights with respect to a Mortgage Loan if the Person to whom the
related
Mortgaged Property has been conveyed or is proposed to be conveyed
satisfies the
terms and conditions contained in the Mortgage Note and Mortgage
related thereto
and the consent of the mortgagee under such Mortgage Note or
Mortgage is not
otherwise required under such Mortgage Note or Mortgage as a
condition to such
transfer. If (i) the Servicer is prohibited by law from enforcing
any such
due-on-sale clause, (ii) coverage under any Required Insurance
Policy would be
adversely affected, (iii) the Mortgage Note does not include a
due-on-sale
clause or (iv) nonenforcement is otherwise permitted hereunder, the
Servicer is
authorized, subject to Section 3.13(b), to take or enter into an
assumption and
modification agreement from or with the Person to whom such
Mortgaged Property
has been or is about to be conveyed, pursuant to which such Person
becomes
liable under the Mortgage Note and, unless prohibited by applicable
state law,
the Mortgagor remains liable thereon; provided that the Mortgage
Loan shall
continue to be covered (if so covered before the Servicer enters
such agreement)
by the applicable Required Insurance Policies. The Servicer,
subject to Section
3.13(b), is also authorized with the prior approval of the insurers
under any
Required Insurance Policies to enter into a substitution of
liability agreement
with such Person, pursuant to which the original Mortgagor is
released from
liability and such Person is substituted as Mortgagor and becomes
liable under
the Mortgage Note. Notwithstanding the foregoing, the Servicer
shall not be
deemed to be in default under this Section 3.13 by reason of any
transfer or
assumption which the Servicer reasonably believes it is restricted
by law from
preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale
clause
to the extent set forth in Section 3.13(a), in any case in which a
Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such
Person is to
enter into an assumption agreement or modification agreement or
supplement to
the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if
an instrument of release signed by the Trustee is required
releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall
prepare and
deliver or cause to be prepared and delivered to the Trustee for
signature and
shall direct, in writing, the Trustee to execute the assumption
agreement with
the Person to whom the Mortgaged Property is to be conveyed and
such
modification agreement or supplement to the Mortgage Note or
Mortgage or other
instruments as are reasonable or necessary to carry out the terms
of the
Mortgage Note or Mortgage or otherwise to comply with any
applicable laws
regarding assumptions or the transfer of the Mortgaged Property to
such Person.
In no event shall the Trustee incur liability for executing any
document under
this Section 3.13 at the direction of the Servicer. In connection
with any such
assumption, no material term of the Mortgage Note may be changed.
In addition,
the substitute Mortgagor and the Mortgaged Property must be
acceptable to the
Servicer in accordance with its underwriting standards as then in
effect.
Together with each such substitution, assumption or other agreement
or
instrument delivered to the Trustee for execution by it, the
Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer
stating that the
requirements of this subsection have been met. The Servicer shall
notify the
Trustee that any such substitution or assumption agreement has been
completed by
forwarding to the Trustee (or at the direction of the Trustee, the
Custodian)
the original of such substitution or assumption agreement, which in
the case of
the original shall be added to the related Mortgage File and shall,
for all
purposes, be considered a part of such Mortgage File to the same
extent as all
other documents and instruments constituting a part thereof. Any
fee collected
by the Servicer for entering into an assumption or substitution of
liability
agreement may be retained by the Servicer as additional Servicing
Compensation.
Notwithstanding the foregoing, to the extent permissible under
applicable law
and at the request of the Servicer, the Trustee shall execute and
deliver to the
Servicer any powers of attorney and other documents prepared by the
Servicer
that are reasonably necessary or appropriate to enable the Servicer
to execute
any assumption agreement or modification agreement required to be
executed by
the Trustee under this Section 3.13.
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO
Property. (a) Subject to Section 3.21, the Servicer shall use
reasonable efforts
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. In connection with such foreclosure or
other conversion,
the Servicer shall follow Customary Servicing Procedures and shall
meet the
requirements of the insurer under any Required Insurance Policy;
provided,
however, that the Servicer may enter into a special servicing
agreement with an
unaffiliated Holder of 100% Percentage Interest of a Class of Class
X-B
Certificates, a Class of Class 2-B Certificates, a Class of Class
5-B
Certificates or a holder of a class of securities representing
interests in the
Class X-B Certificates, Class 2-B Certificates or Class 5-B
Certificates alone
or together with other subordinated mortgage pass-through
certificates. Such
agreement shall be substantially in the form attached hereto as
Exhibit K or
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 Servicer 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.
Notwithstanding the foregoing, the Servicer shall not be required
to expend its
own funds in connection with any foreclosure or towards the
restoration of any
Mortgaged Property unless it shall determine (i) that such
restoration and/or
foreclosure will increase the proceeds of liquidation of the
Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such
expenses will be
recoverable to it through proceeds of the liquidation of the
Mortgage Loan
(respecting which it shall have priority for purposes of
withdrawals from the
Servicer Custodial Account). Any such expenditures shall constitute
Servicing
Advances for purposes of this Agreement.
The decision of the Servicer to foreclose on a defaulted
Mortgage
Loan shall be subject to a determination by the Servicer that the
proceeds of
such foreclosure would exceed the costs and expenses of bringing
such a
proceeding.
With respect to any REO Property, the deed or certificate of
sale
shall be taken in the name of the Trustee for the benefit of
the
Certificateholders, or its nominee, on behalf of the
Certificateholders. The
Trustee's name shall be placed on the title to such REO Property
solely as the
Trustee hereunder and not in its individual capacity. The Servicer
shall ensure
that the title to such REO Property references this Agreement and
the Trustee's
capacity hereunder. Pursuant to its efforts to sell such REO
Property, the
Servicer shall either itself or through an agent selected by the
Servicer
manage, conserve, protect and operate such REO Property in the same
manner that
it manages, conserves, protects and operates other foreclosed
property for its
own account and in the same manner that similar property in the
same locality as
the REO Property is managed. Incident to its conservation and
protection of the
interests of the Certificateholders, the Servicer may rent the
same, or any part
thereof, as the Servicer deems to be in the best interest of
the
Certificateholders for the period prior to the sale of such REO
Property. The
Servicer shall prepare for and deliver to the Trustee a statement
with respect
to each REO Property that has been rented, if any, showing the
aggregate rental
income received and all expenses incurred in connection with the
management and
maintenance of such REO Property at such times as is necessary to
enable the
Trustee to comply with the reporting requirements of the REMIC
Provisions;
provided, however, that the Servicer shall have no duty to rent any
REO Property
on behalf of the Trust. The net monthly rental income, if any, from
such REO
Property shall be deposited in the Servicer Custodial Account no
later than the
close of business on each Determination Date. The Servicer shall
perform, with
respect to the Mortgage Loans, the tax reporting and withholding
required by
Sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by Section 6050H of the
Code with
respect to the receipt of mortgage interest from individuals and,
if required by
Section 6050P of the Code with respect to the cancellation of
indebtedness by
certain financial entities, by preparing such tax and information
returns as may
be required, in the form required. The Servicer shall deliver
copies of such
reports to the Trustee.
If the Trust acquires any Mortgaged Property as described above
or
otherwise in connection with a default or a default which is
reasonably
foreseeable on a Mortgage Loan, the Servicer shall dispose of such
Mortgaged
Property prior to the end of the third calendar year following the
year of its
acquisition by the Trust (such period, the "REO Disposition
Period") unless (A)
the Trustee shall have been supplied by the Servicer with an
Opinion of Counsel
to the effect that the holding by the Trust of such Mortgaged
Property
subsequent to the REO Disposition Period will not result in the
imposition of
taxes on "prohibited transactions" (as defined in Section 860F of
the Code) on
any of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC or
cause any REMIC created hereunder to fail to qualify as a REMIC at
any time that
any Certificates are outstanding, or (B) the Trustee (at the
Servicer's expense)
or the Servicer shall have applied for, prior to the expiration of
the REO
Disposition Period, an extension of the REO Disposition Period in
the manner
contemplated by Section 856(e)(3) of the Code. If such an Opinion
of Counsel is
provided or such an exemption is obtained, the Trust may continue
to hold such
Mortgaged Property (subject to any conditions contained in such
Opinion of
Counsel) for the applicable period. 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 Servicer has agreed to
indemnify
and hold harmless the Trust with respect to the imposition of any
such taxes.
The Servicer shall identify to the Trustee any Mortgaged Property
relating to a
Mortgage Loan held by the Trust for 30 months for which no plans to
dispose of
such Mortgaged Property by the Servicer have been made. After
delivery of such
identification, the Servicer shall proceed to dispose of any such
Mortgaged
Property by holding a commercially reasonable auction for such
property.
The income earned from the management of any REO Properties, net
of
reimbursement to the Servicer for expenses incurred (including any
property or
other taxes) in connection with such management and net of
unreimbursed
Servicing Fees, Periodic Advances and Servicing Advances, shall be
applied to
the payment of principal of and interest on the related defaulted
Mortgage Loans
(solely for the purposes of allocating principal and interest,
interest shall be
treated as accruing as though such Mortgage Loans were still
current) and all
such income shall be deemed, for all purposes in this Agreement, to
be payments
on account of principal and interest on the related Mortgage Notes
and shall be
deposited into the Servicer Custodial Account. To the extent the
net income
received during any calendar month is in excess of the amount
attributable to
amortizing principal and accrued interest at the related Mortgage
Interest Rate
on the related Mortgage Loan for such calendar month, such excess
shall be
considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as
any
income from an REO Property, will be applied in the following order
of priority:
first, to reimburse the Servicer for any related unreimbursed
Servicing Advances
and Servicing Fees; second, to reimburse the Servicer for any
unreimbursed
Periodic Advances and to reimburse the Servicer Custodial Account
for any
Nonrecoverable Advances (or portions thereof) that were previously
withdrawn by
the Servicer pursuant to Section 3.11(a)(iii) that related to such
Mortgage
Loan; third, to accrued and unpaid interest (to the extent no
Periodic Advance
has been made for such amount or any such Periodic Advance has been
reimbursed)
on the Mortgage Loan or related REO Property, at the Mortgage
Interest Rate to
the Due Date occurring in the month in which such amounts are
required to be
distributed; and fourth, as a recovery of principal of the Mortgage
Loan. Excess
Proceeds, if any, from the liquidation of a Liquidated Mortgage
Loan will be
retained by the Servicer as additional Servicing Compensation
pursuant to
Section 3.17.
(b) The Servicer shall promptly notify the Depositor of any
Mortgage
Loan which comes into default. The Depositor shall be entitled, at
its option,
to repurchase (i) any such defaulted Mortgage Loan from the Trust
Estate if (a)
in the Depositor's judgment, the default is not likely to be cured
by the
Mortgagor and (b) such Mortgage Loan is 180 days or more delinquent
or (ii) any
Mortgage Loan in the Trust Estate which pursuant to Section 4(b) of
the Mortgage
Loan Purchase Agreement the Seller requests the Depositor to
repurchase and to
sell to the Seller to facilitate the exercise of the Seller's
rights against the
originator or prior holder of such Mortgage Loan. 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.
Upon the
receipt of such purchase price, the Servicer shall provide to the
Trustee the
notification required by Section 3.15 and the Trustee or the
Custodian shall
promptly release to the Depositor the Mortgage File relating to the
Mortgage
Loan being repurchased.
Section 3.15 Trustee to Cooperate; Release of Mortgage Files.
Upon
the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a
notification that payment in full will be escrowed in a manner
customary for
such purposes, the Servicer will immediately notify the Trustee
(or, at the
direction of the Trustee, the Custodian) by delivering, or causing
to be
delivered, two copies (one of which will be returned to the
Servicer with the
Mortgage File) of a Request for Release (which may be delivered in
an electronic
format acceptable to the Trustee and the 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 Servicer.
The Trustee
shall at the Servicer's direction execute and deliver to the
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 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 Servicer shall 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 Servicing Officer,
release the
Mortgage File within seven Business Days to the Servicer. Subject
to the further
limitations set forth below, the Servicer shall cause the Mortgage
File so
released to be returned to the Trustee or the Custodian, as
applicable, when the
need therefor by the Servicer no longer exists, unless the Mortgage
Loan is
liquidated and the proceeds thereof are deposited in the Servicer
Custodial
Account, in which case the Servicer shall deliver to the Trustee or
the
Custodian, as applicable, a Request for Release, signed by a
Servicing Officer.
The Trustee shall execute and deliver to the Servicer any powers
of
attorney and other documents prepared by the Servicer that are
reasonably
necessary or appropriate to enable the Servicer to carry out its
servicing and
administrative duties under this Agreement, upon the request of the
Servicer. In
addition, upon prepayment in full of any Mortgage Loan or the
receipt of notice
that funds for such purpose have been placed in escrow, the
Servicer is
authorized to give, as attorney-in-fact for the Trustee and the
mortgagee under
the Mortgage, an instrument of satisfaction (or Assignment of
Mortgage without
recourse) regarding the Mortgaged Property relating to such
Mortgage Loan, which
instrument of satisfaction or Assignment of Mortgage, as the case
may be, shall
be delivered to the Person entitled thereto against receipt of the
prepayment in
full. If the Mortgage is registered in the name of MERS or its
designee, the
Servicer shall take all necessary action to reflect the release on
the records
of MERS. In lieu of executing such satisfaction or Assignment of
Mortgage, or if
another document is required to be executed by the Trustee, the
Servicer may
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 3.16 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee. The Servicer shall transmit to
the Trustee
or, at the direction of the Trustee, the Custodian as required by
this Agreement
all documents and instruments in respect of a Mortgage Loan coming
into the
possession of the Servicer from time to time and shall account
fully to the
Trustee for any funds received by the Servicer or which otherwise
are collected
by the Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any
Mortgage Loan. The documents constituting the Servicing File shall
be held by
the Servicer as custodian and bailee for the Trustee. All Mortgage
Files and
funds collected or held by, or under the control of, the Servicer
in respect of
any Mortgage Loans, whether from the collection of principal and
interest
payments or from Liquidation Proceeds, including but not limited
to, any funds
on deposit in the Servicer Custodial Account, shall be held by the
Servicer for
and on behalf of the Trustee and shall be and remain the sole and
exclusive
property of the Trustee, subject to the applicable provisions of
this Agreement.
The Servicer also agrees that it shall not knowingly create, incur
or subject
any Mortgage File or any funds that are deposited in the Servicer
Custodial
Account, Certificate Account or any Escrow Account, or any funds
that otherwise
are or may become due or payable to the Trustee for the benefit of
the
Certificateholders, to any claim, lien, security interest,
judgment, levy, writ
of attachment or other encumbrance created by the 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 Servicer shall be entitled to set off against and deduct
from any such
funds any amounts that are properly due and payable to the Servicer
under this
Agreement.
Section 3.17 Servicing Compensation. The Servicer shall be
entitled
out of each payment of interest on a Mortgage Loan (or portion
thereof) and
included in the Trust Estate to retain or withdraw from the
Servicer Custodial
Account an amount equal to the Servicing Fee for such Distribution
Date;
provided, however, that the aggregate Servicing Fee for the
Servicer relating to
the Mortgage Loans in the Crossed Loan Groups, the aggregate
Servicing Fee for
the Servicer relating to the Mortgage Loans in Loan Group 2 or the
aggregate
Servicing Fee for the Servicer relating to the Mortgage Loans in
Loan Group 5
for such Distribution Date shall be reduced (but not below zero) by
an amount
equal to the Compensating Interest for such Loan Group or Loan
Groups.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be deposited in the Servicer
Custodial
Account pursuant to Section 3.08(b). The Servicer shall be required
to pay all
expenses incurred by it in connection with its servicing activities
hereunder
and shall not be entitled to reimbursement therefor except as
specifically
provided in this Agreement.
Section 3.18 Annual Statement as to Compliance. Commencing in
the
calendar year following the date of this Agreement, the Servicer
shall deliver
to the Trustee and each Rating Agency on or before the 30th day (or
if not a
Business Day, the immediately preceding Business Day) preceding the
latest day
in each year on which an annual report on Form 10-K may be timely
filed with the
Securities and Exchange Commission (without regard to any
extension), an
Officer's Certificate stating, as to the signer thereof, that (a) a
review of
the activities of the Servicer during the preceding calendar year
and of the
performance of the Servicer under this Agreement has been made
under such
officer's supervision, and (b) to the best of such officer's
knowledge, based on
such review, the 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.
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Commencing in the calendar year
following the
date of this Agreement, the Servicer shall, at its own expense, on
or before the
30th day (or if not a Business Day, the immediately preceding
Business Day)
preceding the latest day in each year on which an annual report on
Form 10-K may
be timely filed with the Securities and Exchange Commission
(without regard to
any extension), cause a firm of independent public accountants (who
may also
render other services to the Servicer or any affiliate thereof)
which is a
member of the American Institute of Certified Public Accountants to
furnish a
statement to the Trustee to the effect that such firm has with
respect to the
Servicer's overall servicing operations, examined such operations
in accordance
with the requirements of the Uniform Single Attestation Program for
Mortgage
Bankers, stating such firm's conclusions relating thereto.
Section 3.20 Advances. The Servicer shall determine on or
before
each Servicer Advance Date whether it is required to make a
Periodic Advance
pursuant to the definition thereof. If the Servicer determines it
is required to
make a Periodic Advance, it shall, on or before the Servicer
Advance Date,
either (a) deposit into the Servicer Custodial Account an amount
equal to the
Advance and/or (b) make an appropriate entry in its records
relating to the
Servicer Custodial Account that any portion of the Amount Held for
Future
Distribution with respect to a Loan Group in the Servicer Custodial
Account has
been used by the Servicer in discharge of its obligation to make
any such
Periodic Advance on a Mortgage Loan in such Loan Group. Any funds
so applied
shall be replaced by the Servicer by deposit in the Servicer
Custodial Account
no later than the close of business on the Business Day preceding
the next
Servicer Advance Date. The Servicer shall be entitled to be
reimbursed from the
Servicer Custodial Account for all Advances of its own funds made
pursuant to
this Section 3.20 as provided in Section 3.11(a). The obligation to
make
Periodic Advances with respect to any Mortgage Loan shall continue
until the
ultimate disposition of the REO Property or Mortgaged Property
relating to such
Mortgage Loan. The Servicer shall inform the Trustee of the amount
of the
Periodic Advance to be made by the Servicer with respect to each
Loan Group on
each Servicer Advance Date no later than the related Remittance
Date.
The Servicer shall deliver to the Trustee on the related
Servicer
Advance Date an Officer's Certificate of a Servicing Officer
indicating the
amount of any proposed Periodic Advance determined by the Servicer
to be a
Nonrecoverable Advance. Notwithstanding anything to the contrary,
the Servicer
shall not be required to make any Periodic Advance or Servicing
Advance that
would be a Nonrecoverable Advance.
Section 3.21 Modifications, Waivers, Amendments and Consents.
(a)
Subject to this Section 3.21, the Servicer may agree to any
modification,
waiver, forbearance, or amendment of any term of any Mortgage Loan
without the
consent of the Trustee or any Certificateholder. All modifications,
waivers,
forbearances or amendments of any Mortgage Loan shall be in writing
and shall be
consistent with Customary Servicing Procedures.
(b) The Servicer shall not agree to enter into, and shall not
enter
into, any modification, waiver (other than a waiver referred to in
Section 3.13,
which waiver, if any, shall be governed by Section 3.13),
forbearance or
amendment of any term of any Mortgage Loan if such modification,
waiver,
forbearance, or amendment would:
(i) forgive principal owing under such Mortgage Loan or
permanently
reduce the
interest rate on such Mortgage Loan;
(ii) affect the amount or timing of any related payment of
principal,
interest or other amount payable thereunder;
(iii) in the Servicer's judgment, materially impair the security
for
such
Mortgage Loan or reduce the likelihood of timely payment of
amounts
due
thereon; or
(iv) otherwise constitute a "significant modification" within
the
meaning of
Treasury Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) through (iv) above, (A) such
Mortgage Loan
is 90 days or more past due or (B) the Servicer delivers to the
Trustee an
Opinion of Counsel to the effect that such modification, waiver,
forbearance or
amendment would not affect the REMIC status of any of the
Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC and, in either case,
such
modification, waiver, forbearance or amendment is reasonably
likely, in the
Servicer's judgment, to produce a greater recovery with respect to
such Mortgage
Loan than would liquidation. Subject to Customary Servicing
Procedures, the
Servicer may permit a forbearance for a Mortgage Loan which in the
Servicer's
judgment is subject to imminent default.
(c) [Reserved]
(d) The Servicer may, as a condition to granting any request by
a
Mortgagor for consent, modification, waiver, forbearance or
amendment, the
granting of which is within the Servicer's discretion pursuant to
the Mortgage
Loan and is permitted by the terms of this Agreement, require that
such
Mortgagor pay to the Servicer, as additional Servicing
Compensation, a
reasonable or customary fee for the additional services performed
in connection
with such request, together with any related costs and expenses
incurred by the
Servicer, which amount shall be retained by the Servicer as
additional Servicing
Compensation.
(e) The Servicer shall notify the Trustee, in writing, of any
modification, waiver, forbearance or amendment of any term of any
Mortgage Loan
and the date thereof, and shall deliver to the Trustee (or, at the
direction of
the Trustee, the Custodian) for deposit in the related Mortgage
File, an
original counterpart of the agreement relating to such
modification, waiver,
forbearance or amendment, promptly (and in any event within ten
Business Days)
following the execution thereof; provided, however, that if any
such
modification, waiver, forbearance or amendment is required by
applicable law to
be recorded, the Servicer (i) shall deliver to the Trustee a copy
thereof and
(ii) shall deliver to the Trustee such document, with evidence of
notification
upon receipt thereof from the public recording office.
Section 3.22 Reports to the Securities and Exchange Commission.
(a) The Trustee and the 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
Trustee shall prepare on behalf of the Trust any monthly Current
Reports on Form
8-K (each, a "Monthly Form 8-K") (or other comparable form) 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 Trustee shall sign (other than any
Form 10-K) and
file (via the Securities and Exchange Commission's Electronic Data
Gathering and
Retrieval System) such forms on behalf of the Trust. The Servicer
shall sign any
Form 10-K.
(b) Each Monthly Form 8-K shall be filed by the Trustee within
15
days after each Distribution Date, including a copy of the monthly
statement to
Certificateholders delivered pursuant to Section 5.04(b) (each, a
"Distribution
Date Statement") for such Distribution Date as an exhibit thereto.
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
Trustee 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 Servicer's annual statement of
compliance
described under Section 3.18 and the accountant's report described
under Section
3.19, in each case, to the extent they have been timely delivered
to the
Trustee. If they are not so timely delivered, the Trustee shall
file an amended
Form 10-K including such documents as exhibits reasonably promptly
after they
are delivered to the Trustee. The Trustee shall have no liability
with respect
to any failure to properly prepare or file such periodic reports
resulting from
or relating to the Trustee'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 Servicer
in charge of the servicing function. The Servicer shall deliver
the
Certification to the Trustee three (3) Business Days prior to the
latest date on
which the Form 10-K may be timely filed. The Trustee, the Depositor
and the
Servicer shall reasonably cooperate to enable the Securities and
Exchange
Commission requirements with respect to the Trust to be met in the
event that
the Securities and Exchange Commission issues additional
interpretive guidelines
or promulgates rules or regulations, or in the event of any other
change of law
that would require reporting arrangements or the allocation of
responsibilities
with respect thereto, as described in this Section 3.22, to be
conducted or
allocated in a different manner.
(c) Prior to the latest date on which the Form 10-K may be
timely
filed each year, the Trustee shall sign and deliver to the Servicer
a
certification (in the form attached hereto as Exhibit P) for the
benefit of the
Servicer and its officers, directors and Affiliates (provided,
however, that the
Trustee shall not undertake an analysis of the accountant's report
attached as
an exhibit to the Form 10-K). In addition, the Trustee shall
indemnify and hold
harmless the Servicer and its officers, directors and Affiliates
from and
against any losses, damages, penalties, fines, forfeitures,
reasonable and
necessary legal fees and related costs, judgments and other costs
and expenses
arising out of or based upon any inaccuracy in the certification
provided by the
Trustee pursuant to this Section 3.22(c), any breach of the
Trustee's
obligations under this Section 3.22(c) or the Trustee's negligence,
bad faith or
willful misconduct in connection therewith. If the indemnification
provided for
herein is unavailable or insufficient to hold harmless the Servicer
and its
officers, directors and affiliates, then the Trustee agrees that it
shall
contribute to the amount paid or payable by the Servicer, its
officers,
directors or affiliates as a result of the losses, claims, damages
or
liabilities of the Servicer, its officers, directors or affiliates
in such
proportion as is appropriate to reflect the relative fault of the
Servicer and
its officers, directors and affiliates on the one hand and the
Trustee on the
other in connection with a breach of the Trustee's obligations
under this
Section 3.22(c) or the Trustee's negligence, bad faith or willful
misconduct in
connection therewith. The Servicer hereby acknowledges and agrees
that the
Depositor and the Trustee are relying on the Servicer's performance
of its
obligations under Sections 3.18 and 3.19 in order to perform their
respective
obligations under this Section 3.22.
(d) Upon any filing with the Securities and Exchange Commission,
the
Trustee shall promptly deliver to the Depositor a copy of any such
executed
report, statement or information.
The obligations set forth in paragraphs (a) through (d) of this
Section shall only apply with respect to periods for which the
Trustee 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 Trustee 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 (d) 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).
Section 3.23 Buy-Down Account; Application of Buy-Down Funds.
In addition to the Servicer Custodial Account, if any of the
Mortgage Loans are Buy-Down Mortgage Loans, the Servicer shall
establish and
maintain a Buy-Down Account, which is not part of the Trust Estate,
and shall
deposit therein all Buy-Down Funds not later than the Business Day
following the
day of receipt and posting by the Servicer. The Servicer shall keep
and maintain
a separate account for each Buy-Down Mortgage Loan for the purpose
of accounting
for deposits to and withdrawals from the Buy-Down Account. The
Servicer shall
invest the funds in the Buy-Down Account in investments which are
Permitted
Investments. All income and gain realized from any such investment,
to the
extent not required by the applicable Buy-Down Agreements to be
applied to pay
interest on the related Buy-Down Mortgage Loans, shall be for the
benefit of the
Servicer. The amount of any losses incurred in respect of such
investments shall
be deposited in the Buy-Down Account by the Servicer out of its own
funds
immediately as realized.
With respect to each Buy-Down Mortgage Loan, on the Business
Day
next following receipt of the Mortgagor's required monthly payment
under the
related Buy-Down Agreement, the Servicer shall withdraw from the
Buy-Down
Account and deposit in immediately available funds in the Servicer
Custodial
Account an amount which, when added to such Mortgagor's payment,
will equal the
full monthly payment due under the related Mortgage Note.
Upon termination of a Buy-Down Agreement, no further Buy-Down
Funds
relating thereto shall be deposited into the Servicer Custodial
Account, and the
Servicer may withdraw the related Buy-Down Funds which remain in
the Buy-Down
Account and distribute such funds as provided by such Buy-Down
Agreement.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate. Each month, not later than
12:00 noon Eastern time on the Business Day following each
Determination Date,
the Servicer shall deliver to the Trustee, a Servicer's Certificate
(in
substance and format mutually acceptable to the Servicer and the
Trustee)
certified by a Servicing Officer setting forth the information
necessary in
order for the Trustee to perform its obligations under this
Agreement. The
Trustee may conclusively rely upon the information contained in a
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 Servicer's Certificate, the Trustee shall
distribute
or be deemed to distribute, as applicable, out of the Certificate
Account, the
Upper-Tier Certificate Sub-Account or the Middle-Tier Certificate
Sub-Account,
as applicable (to the extent funds are available therein), to
each
Certificateholder of record on the related Record Date (other than
as provided
in Section 10.01 respecting the final distribution) (a) by check
mailed to such
Certificateholder entitled to receive a distribution on such
Distribution Date
at the address appearing in the Certificate Register, or (b) upon
written
request by the Holder of a Regular Certificate or Class X-PO or
Class 30-IO
Certificate, by wire transfer or by such other means of payment as
such
Certificateholder and the Trustee shall agree upon, such
Certificateholder's
Percentage Interest in the amount to which the related Class of
Certificates is
entitled in accordance with the priorities set forth below in
Section 5.02.
None of the Holders of any Class of Certificates, the Depositor,
the
Servicer or the Trustee shall in any way be responsible or liable
to Holders of
any Class of Certificates in respect of amounts properly previously
distributed
on any such Class.
Amounts distributed with respect to any Class of Certificates
shall
be applied first to the distribution of interest thereon and then
to principal
thereon.
Section 5.02 Priorities of Distributions. (a) On each
Distribution
Date, based solely on the information contained in the Servicer's
Certificate,
the Trustee shall withdraw from the Certificate Account (to the
extent funds are
available therein) (1) the amounts payable to the Trustee pursuant
to Sections
3.11(b)(i) and 3.11(b)(ii) and shall pay such funds to itself, and
(2) the Pool
Distribution Amount for each Loan Group, in an amount as specified
in written
notice received by the Trustee from the Servicer no later than the
Business Day
following the related Determination Date, and shall apply such
funds (or be
deemed to apply such funds, as applicable), first, to distributions
in respect
of the Uncertificated Lower-Tier Interests as specified in this
Section 5.02(a)
for a deemed deposit in the Middle-Tier Certificate Sub-Account and
the Class
1-A-LR Certificate, and then, to distributions in respect of the
Uncertificated
Middle-Tier Interests as specified in this Section 5.02(a) for a
deemed deposit
in the Upper-Tier Certificate Sub-Account and the Class 1-A-MR
Certificate.
Distributions shall be made on the Certificates in the following
order of
priority and to the extent of such funds, paying Group 1 solely
from the Pool
Distribution Amount for Loan Group 1, paying Group 2 solely from
the Pool
Distribution Amount for Loan Group 2, paying Group 3 solely from
the Pool
Distribution Amount for Loan Group 3, paying Group 4 solely from
the Pool
Distribution Amount for Loan Group 4, paying Group 5 solely from
the Pool
Distribution Amount for Loan Group 5, paying the Class X-B
Certificates solely
from the Pool Distribution Amounts for Loan Group 1, Loan Group 3
and Loan Group
4, paying the Class 2-B Certificates solely from the Pool
Distribution Amount
for Loan Group 2, paying the Class 5-B Certificates solely from the
Pool
Distribution Amount for Loan Group 5, in the following order of
priority and to
the extent of such funds:
(i) to each Class of interest-bearing Senior Certificates and
Class
IO
Component of such Group, pro rata, an amount allocable to
interest
equal to
the Interest Distribution Amount or Component Interest
Distribution Amount for such Class or Component, as the case may
be, and
any
shortfall being allocated among such Classes and Components in
proportion
to the amount of the Interest Distribution Amount or Component
Interest
Distribution Amount, that would have been distributed in the
absence of
such shortfall; provided, however, that until the Accretion
Termination Date, amounts that would have been distributed pursuant
to
this
clause to the Class 1-A-11 or Class 1-A-16 Certificates will
instead
be
distributed in reduction of the Class Certificate Balances of
the
Classes of
Certificates specified in Section 5.02(b)(i);
(ii) concurrently (I) to the Senior Certificates (but not the
Class
15-PO or
Class 5-PO Certificates) of such Group and (II) to the PO
Component
of such Group, in the case of Group 1, Group 2 or Group 3, in
the case
of Group 4, to the Class 15-PO Certificates, and in the case of
Group 5,
to the Class 5-PO Certificates, pro rata, based on their
respective
Senior Principal Distribution Amount and PO Principal Amount,
(A) to the
Senior Certificates of such Group (but not the Class 15-PO and
Class 5-PO
Certificates), in an aggregate amount up to the Senior
Principal
Distribution Amount for such Group, such distribution to be
allocated
among such Classes in accordance with Section 5.02(b) and (B)
to
the PO
Component of such Group, in the case of Group 1, Group 2 or
Group
3, to the
Class 15-PO Certificates, in the case of Group 4, or to the
Class 5-PO
Certificates, in the case of Group 5, in an aggregate amount up
to the PO
Principal Amount for such Group;
(iii) in the case of Group 1, Group 2 or Group 3, to the PO
Component
of such Group, in the case of Group 4, to the Class 15-PO
Certificates, and in the case of Group 5, to the Class 5-PO
Certificates,
any PO
Deferred Amount (after giving effect to the distribution to such
PO
Component
or Class 15-PO and Class 5-PO Certificates of the PO Recovery
for the
Related Loan Group), up to the Subordinate Principal
Distribution
Amount for
the Crossed Loan Groups, in the case of the Class 1-X-PO and
Class
3-X-PO Components and the Class 15-PO Certificates, and the
Subordinate Principal Distribution Amount for Loan Group 2, in the
case of
the Class
2-X-PO Component, or the Subordinate Principal Distribution
Amount for
Loan Group 5, in the case of the Class 5-PO Certificates, for
such
Distribution Date from amounts otherwise distributable to the
Class
X-B
Certificates, in the case of the Class 1-X-PO and Class 3-X-PO
Components and the
Class 15-PO Certificates, to the Class 2-B
Certificates, in the case of the Class 2-X-PO Component, and to the
Class
5-B
Certificates, in the case of the Class 5-PO Certificates, first to
the
Class
X-B-6 Certificates, Class 2-B-6 Certificates or Class 5-B-6
Certificates, as the case may be, pursuant to clause (iv)(L) below,
second
to the
Class X-B-5 Certificates, Class 2-B-5 Certificates or Class
5-B-5
Certificates, as the case may be, pursuant to clause (iv)(J) below,
third
to the
Class X-B-4 Certificates, Class 2-B-4 Certificates or Class
5-B-4
Certificates, as the case may be, pursuant to clause (iv)(H) below,
fourth
to the
Class X-B-3 Certificates, Class 2-B-3 Certificates or Class
5-B-3
Certificates, as the case may be, pursuant to clause (iv)(F) below,
fifth
to the
Class X-B-2 Certificates, Class 2-B-2 Certificates or Class
5-B-2
Certificates, as the case may be, pursuant to clause (iv)(D) below
and
finally to
the Class X-B-1 Certificates, Class 2-B-1 Certificates or Class
5-B-1
Certificates, as the case may be, pursuant to clause (iv)(B)
below;
(iv) to each Class of Class X-B Certificates, Class 2-B
Certificates
or Class
5-B Certificates, subject to paragraph (d) below, in the
following
order of priority:
(A) to the Class X-B-1 Certificates, Class 2-B-1 Certificates
or Class 5-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 X-B-1 Certificates, Class 2-B-1 Certificates
or Class 5-B-1 Certificates, as the case may be, an amount
allocable
to principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the PO Deferred Amounts of the
Class
1-X-PO and Class 3-X-PO Components and the Class 15-PO
Certificates
(in the case of the Class X-B-1 Certificates), the PO Deferred
Amounts of the Class 2-X-PO Component (in the case of the Class
2-B-1 Certificates) or the PO Deferred Amounts of the Class
5-PO
Certificates (in the case of the Class 5-B-1 Certificates)
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(C) to the Class X-B-2 Certificates, Class 2-B-2 Certificates
or Class 5-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 X-B-2 Certificates, Class 2-B-2 Certificates
or Class 5-B-2 Certificates, as the case may be, an amount
allocable
to principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the PO Deferred Amounts of the
Class
1-X-PO and Class 3-X-PO Components and the Class 15-PO
Certificates
(in the case of the Class X-B-2 Certificates), the PO Deferred
Amounts of the Class 2-X-PO Component (in the case of the Class
2-B-2 Certificates) or the PO Deferred Amounts of the Class
5-PO
Certificates (in the case of the Class 5-B-2 Certificates)
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(E) to the Class X-B-3 Certificates, Class 2-B-3 Certificates
or Class 5-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 X-B-3 Certificates, Class 2-B-3 Certificates
or Class 5-B-3 Certificates, as the case may be, an amount
allocable
to principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the PO Deferred Amounts of the
Class
1-X-PO and Class 3-X-PO Components and the Class 15-PO
Certificates
(in the case of the Class X-B-3 Certificates), the PO Deferred
Amounts of the Class 2-X-PO Component (in the case of the Class
2-B-3 Certificates) or the PO Deferred Amounts of the Class
5-PO
Certificates (in the case of the Class 5-B-3 Certificates)
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(G) to the Class X-B-4 Certificates, Class 2-B-4 Certificates
or Class 5-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 X-B-4 Certificates, Class 2-B-4 Certificates
or Class 5-B-4 Certificates, as the case may be, an amount
allocable
to principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the PO Deferred Amounts of the
Class
1-X-PO and Class 3-X-PO Components and the Class 15-PO
Certificates
(in the case of the Class X-B-4 Certificates), the PO Deferred
Amounts of the Class 2-X-PO Component (in the case of the Class
2-B-4 Certificates) or the PO Deferred Amounts of the Class
5-PO
Certificates (in the case of the Class 5-B-4 Certificates)
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(I) to the Class X-B-5 Certificates, Class 2-B-5 Certificates
or Class 5-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 X-B-5 Certificates, Class 2-B-5 Certificates
or Class 5-B-5 Certificates, as the case may be, an amount
allocable
to principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the PO Deferred Amounts of the
Class
1-X-PO and Class
3-X-PO Components and the Class 15-PO Certificates
(in the case of the Class X-B-5 Certificates), the PO Deferred
Amounts of the Class 2-X-PO Component (in the case of the Class
2-B-5 Certificates) or the PO Deferred Amounts of the Class
5-PO
Certificates (in the case of the Class 5-B-5 Certificates)
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(K) to the Class X-B-6 Certificates, Class 2-B-6 Certificates
or Class 5-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 X-B-6 Certificates, Class 2-B-6 Certificates
or Class 5-B-6 Certificates, as the case may be, an amount
allocable
to principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the PO Deferred Amounts of the
Class
1-X-PO and Class 3-X-PO Components and the Class 15-PO
Certificates
(in the case of the Class X-B-6 Certificates), the PO Deferred
Amounts of the Class 2-X-PO Component (in the case of the Class
2-B-6 Certificates) or the PO Deferred Amounts of the Class
5-PO
Certificates (in the case of the Class 5-B-6 Certificates)
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero; and
(v) to the Holder of the Class 1-A-R Certificate, any amounts
remaining
in the Upper-Tier Certificate Sub-Account, to the Holder of the
Class
1-A-MR Certificate, any amounts remaining in the Middle-Tier
Certificate Sub-Account and to the Holder of the Class 1-A-LR
Certificate,
any
remaining Pool Distribution Amounts.
No Class of Certificates or Component will be entitled to any
distributions with respect to the amount payable pursuant to clause
(ii) of the
definition of "Interest Distribution Amount" or clause (ii) of the
definition of
"Component Interest Distribution Amount" after its Class
Certificate Balance or
Notional Amount has been reduced to zero.
For any Group and on any Distribution Date, amounts distributed
in
respect of the PO Deferred Amounts (including the distribution of
the PO
Recoveries) will not reduce the Component Balance of the applicable
PO Component
or the Class Certificate Balance of the Class 15-PO or Class 5-PO
Certificates.
All distributions in respect of the Interest Distribution Amount
for
a Class or the Component Interest Distribution Amount for a
Component will be
applied first with respect to the amount payable pursuant to clause
(i) of the
definition of "Interest Distribution Amount," or "Component
Interest
Distribution Amount," as applicable, and second with respect to the
amount
payable pursuant to clause (ii) of such definitions.
On each Distribution Date, the Trustee shall distribute any
Reimbursement Amount sequentially to the Classes of Certificates
then
outstanding which bore the loss to which such Reimbursement Amount
relates
beginning with the most senior of such Classes of Certificates, up
to, with
respect to each Class, the amount of loss borne by such Class. Any
Reimbursement
Amount remaining after the application described in the preceding
sentence shall
be included in the Pool Distribution Amount for the applicable Loan
Group.
In the event that on any Distribution Date, the Subordinate
Principal Distribution Amounts for the Crossed Loan Groups is
insufficient to
reduce the PO Deferred Amounts of the Class 1-X-PO Component, Class
3-X-PO
Component and the Class 15-PO Certificates to zero, the amount that
is available
shall be distributed among such Components and such Class pro rata
based on the
PO Deferred Amounts.
On each Distribution Date, each Uncertificated Middle-Tier
Interest
(other than the Class 1-30-MIO Interest, Class 2-30-MIO Interest,
Class 20-MIO
Interest, Class 15-MIO Interest and Class 5-MIO Interest) shall
receive
distributions in respect of principal in an amount equal to the
amount of
principal distributed to its respective Corresponding Upper-Tier
Class, Classes
or Component as provided herein. On each Distribution Date, each
Uncertificated
Middle-Tier Interest (other than the Class 1-X-MPO Interest, Class
2-X-MPO
Interest, Class 3-X-MPO Interest, Class 15-X-MPO Interest and Class
5-X-MPO
Interest) shall receive distributions in respect of interest in an
amount equal
to the Interest Accrual Amounts and Unpaid Interest Shortfalls, as
the case may
be, in respect of its Corresponding Upper-Tier Class, Classes or
Component, in
each case to the extent actually distributed thereon. Such amounts
distributed
to the Uncertificated Middle-Tier Interests in respect of principal
and interest
with respect to any Distribution Date are referred to herein
collectively as the
"Middle-Tier Distribution Amount."
As of any date, the principal balance or notional amount of
each
Uncertificated Middle-Tier Interest equals the aggregate of the
Class
Certificate Balances or Notional Amounts of the respective
Corresponding
Upper-Tier Class, Classes or Component. The initial principal
balance or
notional amount of each Uncertificated Middle-Tier Interest equals
the aggregate
of the Initial Class Certificate Balances or Initial Notional
Amounts of the
respective Corresponding Upper-Tier Class, Classes or
Component.
The pass-through rate with respect to the Class 1-A-M1
Interest,
Class 1-A-M4 Interest, Class 1-A-M10 Interest and Class 1-A-MUR
Interest shall
be 5.500% per annum. The pass-through rate with respect to the
Class 1-A-M13
Interest shall be 5.250% per annum. The pass-through rate with
respect to the
Class 1-A-M14 Interest shall be 8.000% per annum. The pass-through
rate with
respect to the Class 2-A-M1 Interest shall be 5.750% per annum. The
pass-through
rate with respect to the Class 3-A-M1 Interest shall be 5.750% per
annum. The
pass-through rate with respect to the Class 4-A-M1 Interest shall
be 5.000% per
annum. The pass-through rate with respect to the Class 5-A-M1
Interest shall be
6.500% per annum. The pass-through rate with respect to the Class
1-30-MIO
Interest shall be a per annum rate equal to the Pass-Through Rate
of the Class
1-30-IO Component. The pass-through rate with respect to the Class
2-30-MIO
Interest shall be a per annum rate equal to the Pass-Through Rate
of the Class
2-30-IO Component. The pass-through rate with respect to the Class
20-MIO
Interest shall be a per annum rate equal to the Pass-Through Rate
of the Class
20-IO Certificates. The pass-through rate with respect to the Class
15-MIO
Interest shall be a per annum rate equal to the Pass-Through Rate
of the Class
15-IO Certificates. The pass-through rate with respect to the Class
5-MIO
Interest shall be a per annum rate equal to the Pass-Through Rate
of the Class
5-IO Certificates. The pass-through rate with respect to the Class
X-B-M1
Interest, Class X-B-M2 Interest, Class X-B-M3 Interest, Class
X-B-M4 Interest,
Class X-B-M5 Interest and Class X-B-M6 Interest shall be the
weighted average of
the Class 1-LS Interest, (ii) the Class 3-LS Interest and (iii) the
Class 4LS
Interest. The pass-through rate with respect to the Class 2-B-M1
Interest, Class
2-B-M2 Interest, Class 2-B-M3 Interest, Class 2-B-M4 Interest,
Class 2-B-M5
Interest and Class 2-B-M6 Interest shall be 5.750% per annum. The
pass-through
rate with respect to the Class 5-B-M1 Interest, Class 5-B-M2
Interest, Class
5-B-M3 Interest, Class 5-B-M4 Interest, Class 5-B-M5 Interest and
Class 5-B-M6
shall be 6.500% per annum.
The Class 1-X-MPO Interest, the Class 2-X-MPO Interest, the
Class
3-X-MPO Interest, the Class 15-MPO Interest and the Class 5-MPO
Interest are
principal-only interests and are not entitled to distributions of
interest.
On each Distribution Date, interest shall be distributed in respect
of each
Uncertificated Lower-Tier Interest (other than the Class 1-LPO
Interest, the
Class 2-LPO Interest, the Class 3-LPO Interest, the Class 4-LPO
Interest and the
Class 5-LPO Interest) at the pass-through rate thereon, as
described in the
final paragraph of this Section 5.02(a). On each Distribution
Date,
distributions of principal with respect to the Uncertificated
Lower-Tier
Interests shall be made first, to the Class 1-LPO Interest, Class
2-LPO
Interest, Class 3-LPO Interest, Class 4-LPO Interest and the Class
5-LPO
Interest, so as to keep the principal balances thereof at all times
equal to the
Component Balance or Class Certificate Balance, as the case may be,
of the Class
1-X-PO Component, Class 2-X-PO Component, Class 3-X-PO Component,
Class 15-PO
Certificates and Class 5-PO Certificates, respectively; second, to
the Class
1-LS Interest, the Class 3-LS Interest and the Class 4-LS Interest,
so as to
keep the principal balances thereof (computed to eight decimal
places) equal to
0.100% of the Group Subordinate Amount for Loan Group 1, Loan Group
3 and Loan
Group 4, respectively (except that if any such amount is greater
than on the
preceding Distribution Date, the least amount of principal shall be
distributed
to the Class 1-LS Interest, Class 3-LS Interest and Class 4-LS
Interest such
that the Subordinate Balance Ratio is maintained), and third, any
remaining
principal to the Class 1-L Interest, Class 2-L Interest, Class 3-L
Interest,
Class 4-L Interest and Class 5-L Interest.
Any distributions made to the Uncertificated Lower-Tier
Interests
pursuant to this paragraph shall be made (a) from Loan Group 1
Principal
Distribution Amounts to Uncertificated Lower-Tier Interests
beginning with the
numeral "1," (b) from Loan Group 2 Principal Distribution Amounts
to
Uncertificated Lower-Tier Interests beginning with the numeral "2,"
(c) from
Loan Group 3 Principal Distribution Amounts to Uncertificated
Lower-Tier
Interests beginning with the numeral "3," (d) from Loan Group 4
Principal
Distribution Amounts to Uncertificated Lower-Tier Interests
beginning with the
numeral "4" and (e) from Loan Group 5 Principal Distribution
Amounts to
Uncertificated Lower-Tier Interests beginning with the numeral
"5."
Realized Losses shall be applied after all distributions have been
made on each
Distribution Date first, to the Class 1-LPO Interest, Class 2-LPO
Interest,
Class 3-LPO Interest, Class 4-LPO Interest and Class 5-LPO
Interest, so as to
keep their principal balances equal to the Component Balance or sum
of the
Component Balance and Class Certificate Balance, as the case may
be, of the
Class 1-X-PO Component, Class 2-X-PO Component, Class 3-X-PO
Component, Class
15-PO Certificates and Class 5-PO Certificates, respectively;
second, to the
Class 1-LS Interest, Class 3-LS Interest and Class 4-LS Interest,
so as to keep
the principal balances thereof (computed to eight decimal places)
equal to
0.100% of the Group Subordinate Amount for Loan Group 1, Loan Group
3 and Loan
Group 4, respectively (except that if any such amount is greater
than on the
preceding Distribution Date, the least amount of Realized Loss
shall be
allocated to the Class 1-LS Interest, Class 3-LS Interest and Class
4-LS
Interest such that the Subordinate Balance Ratio is maintained);
and third, the
remaining Realized Losses shall be allocated to the Class 1-L
Interest, Class
2-L Interest, Class 3-L Interest, Class 4-L Interest and Class 5-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" and (e) from Realized Losses
allocated to Loan
Group 5 in the case of Uncertificated Lower-Tier Interests
beginning with the
numeral "5."
As of any date, the notional balance of the Class 1-LIO Interest
will be equal
to the Class 1-30-IO Notional Amount. As of any date, the notional
balance of
the Class 2-LIO Interest will be equal to the Class 2-30-IO
Notional Amount. As
of any date, the notional balance of the Class 3-LIO Interest will
be equal to
the Class 20-IO Notional Amount. As of any date, the notional
balance of the
Class 4-LIO Interest will be equal to the Class 15-IO Notional
Amount. As of any
date, the notional balance of the Class 5-LIO Interest will be
equal to the
Class 5-IO Notional Amount. As of any date, (i) the principal
balance of the
Class 1-LPO Interest will be equal to the Component Balance of the
Class 1-X-PO
Component, (ii) the principal balance of the Class 2-LPO Interest
will be equal
to the Component Balance of the Class 2-X-PO Component, (iii) the
principal
balance of the Class 3-LPO Interest will be equal to the Component
Balance of
the Class 3-X-PO Component, (iv) the principal balance of the Class
4-LPO
Interest will be equal to the and the Certificate Balance of the
Class 15-PO
Certificates, and (v) the principal balance of the Class 5-LPO
Interest will be
equal to the Certificate Balance of the Class 5-PO Certificates. As
of any date,
the aggregate principal balance of the Class 1-L Interest and the
Class 1-LS
Interest shall equal the aggregate Pool Stated Principal Balance
(Non-PO
Portion) of Loan Group 1 minus the Class Certificate Balance of the
Class 1-A-LR
Certificate (the "Adjusted Loan Group Balance"). As of any date,
the principal
balance of the Class 2-L Interest shall equal the aggregate Pool
Stated
Principal Balance (Non-PO Portion) of Loan Group 2. As of any date,
the
aggregate principal balance of the Class 3-L Interest and the Class
3-LS
Interest shall equal the aggregate Pool Stated Principal Balance
(Non-PO
Portion) of Loan Group 3. As of any date, the aggregate principal
balance of the
Class 4-L Interest and the Class 4-LS Interest shall equal the
aggregate Pool
Stated Principal Balance (Non-PO Portion) of Loan Group 4. As of
any date, the
principal balance of the Class 5-L Interest shall equal the
aggregate Pool
Stated Principal Balance (Non-PO Portion) of Loan Group 5.
The pass-through rate with respect to the Class 1-L Interest and
the
Class 1-LS Interest shall be 5.500% per annum. The pass-through
rate with
respect to the Class 2-L Interest shall be 5.750% per annum. The
pass-through
rate with respect to the Class 3-L Interest and the Class 3-LS
Interest shall be
5.750% per annum. The pass-through rate with respect to the Class
4-L Interest
and the Class 4-LS Interest shall be 5.000% per annum. The pass
through rate
with respect to the Class 5-L Interest shall be 6.500% per annum.
The
pass-through rate with respect to the Class 1-LIO Interest shall be
a per annum
rate equal the Pass-Through Rate of the Class 1-30-IO Component.
The
pass-through rate with respect to the Class 2-LIO Interest shall be
a per annum
rate equal the Pass-Through Rate of the Class 2-30-IO Component.
The
pass-through rate with respect to the Class 3-LIO Interest shall be
a per annum
rate equal the Pass-Through Rate of the Class 20-IO Certificates.
The
pass-through rate with respect to the Class 4-LIO Interest shall be
a per annum
rate equal the Pass-Through Rate of the Class 15-IO Certificates.
The
pass-through rate with respect to the Class 5-LIO Interest shall be
a per annum
rate equal the Pass-Through Rate of the Class 5-IO Certificates.
The Class 1-LPO
Interest, the Class 2-LPO Interest, the Class 3-LPO Interest, the
Class 4-LPO
Interest and the Class 5-LPO Interest are principal-only interests
and are not
entitled to distributions of interest. Any Non-Supported Interest
Shortfalls and
Relief Act Reductions will be allocated to each Uncertificated
Lower-Tier
Interest in the same relative proportions as interest is allocated
to such
Uncertificated Lower-Tier Interest. Amounts distributed to the
Uncertificated
Lower-Tier Interests in respect of principal and interest with
respect to any
Distribution Date are referred to herein collectively as the
"Lower-Tier
Distribution Amount."
(b) (i) With respect to the Group 1 Senior Certificates:
I. On each Distribution Date occurring prior to the Accretion
Termination Date, the Class 1-A-11 Accrual Distribution Amount and
the
Class
1-A-16 Accrual Distribution Amount will be allocated,
sequentially,
as
follows:
(i) to the Class 1-A-10 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(ii) concurrently, to the Class 1-A-11 Class 1-A-16
Certificates, pro
rata, until their Class Certificate Balances have
been reduced to zero.
II. 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)(iii) for such Distribution
Date,
will be
distributed, sequentially, as follows:
first, concurrently, to the Class 1-A-R, Class 1-A-MR and Class
1-A-LR
Certificates, pro rata, until their Class Certificate Balances
have
been
reduced to zero;
second, concurrently, to the Class 1-A-1, Class 1-A-2, Class
1-A-4
and Class
1-A-8 Certificates, pro rata, up to the Priority Amount for
such
Distribution Date, until their Class Certificate Balances have
been
reduced to
zero;
third, concurrently, to the Class 1-A-3, Class 1-A-13 and Class
1-A-14
Certificates, pro rata, until their Class Certificate Balances
have
been
reduced to zero;
fourth, sequentially, as follows:
(a) if the sum of the Class Certificate Balances of the Class
1-A-11
and Class
1-A-16 Certificates is greater than or equal to $8,723,223.83,
sequentially, as follows:
(i)
to the Class 1-A-10 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(ii) concurrently, to the Class 1-A-11 and Class 1-A-16
Certificates, pro rata;
(b) after the sum of the Class Certificate Balances of the
Class
1-A-11 and
Class 1-A-16 Certificates is less than $8,723,223.83,
concurrently, as follows:
(i) 46.5903944233%, concurrently, to the Class 1-A-11 and
Class 1-A-16 Certificates, pro rata, until their Class
Certificate
Balances have been reduced to zero; and
(ii) 53.4096055767%, sequentially, to the Class 1-A-5, Class
1-A-6 and Class 1-A-7 Certificates, in that order, until their
Class
Certificate Balances have been reduced to zero; and
fifth, concurrently, to the Class 1-A-1, Class 1-A-2, Class
1-A-4
and Class
1-A-8 Certificates, pro rata, until their Class Certificate
Balances
have been reduced to zero.
(ii) With respect to the Group 2 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion
Date for Group 2, the amount distributable to the Group 2
Senior
Certificates pursuant to Section 5.02(a)(iii) for such Distribution
Date,
will be
distributed, 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 Group 3 Senior Certificates:
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)(iii) for such Distribution
Date,
will be
distributed to the Class 3-A-1 Certificates until their Class
Certificate Balance has been reduced to zero.
(iv) With respect to the Group 4 Senior Certificates:
On each
Distribution Date prior to the Senior Credit Support
Depletion
Date for Group 4, the amount distributable to the Group 4
Senior
Certificates pursuant to Section 5.02(a)(iii) for such Distribution
Date,
will be
distributed to the Class 4-A-1 Certificates until their Class
Certificate Balance has been reduced to zero.
(v) With respect to the Group 5 Senior Certificates:
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)(iii) for such Distribution
Date,
will be
distributed to the Class 5-A-1 Certificates until their Class
Certificate Balance has been reduced to zero.
On each Distribution Date on or after the applicable Senior
Credit
Support Depletion Date, notwithstanding the allocation and priority
set forth
above, the portion of the Pool Distribution Amount with respect to
a Loan Group
available to be distributed as principal of the Senior Certificates
of the
Related Group (but not the Class 15-PO and Class 5-PO Certificates)
shall be
distributed concurrently, as principal, on such Classes, pro rata,
on the basis
of their respective Class Certificate Balances, until the Class
Certificate
Balances thereof are reduced to zero.
The Class 1-A-9, Class 1-A-12, Class 1-A-15, Class 30-IO, Class
20-IO, Class 15-IO and Class 5-IO Certificates are Interest-Only
Certificates
and are not entitled to distributions in respect of principal.
(vi) Notwithstanding the foregoing, on each Distribution Date
prior
to the Senior Credit Support Depletion Date for the Crossed Groups
but on or
after the date on which the aggregate Class Certificate Balance of
the Senior
Certificates of a Crossed Group (not including the Class 15-PO
Certificates) has
been reduced to zero, amounts otherwise distributable as principal
payments on
the Class X-B Certificates will be paid as principal to the Classes
of Senior
Certificates of the remaining Crossed Groups (but not the Class
15-PO
Certificates), in accordance with the priorities set forth for the
applicable
Group in (i), (iii) or (iv) above, provided that on such
Distribution Date (a)
the Crossed Aggregate Subordinate Percentage for such Distribution
Date is less
than twice the initial Crossed Aggregate Subordinate Percentage or
(b) the
outstanding principal balance of all Mortgage Loans in the 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 aggregate Class
Certificate Balance of
the Class X-B Certificates, is equal to or greater than 50%. If the
Senior
Certificates of two Crossed Groups (not including the Class 15-PO
Certificates)
remain outstanding, the distributions described in the previous
sentence will be
made to such Senior Certificates of such Groups, pro rata, in
proportion to the
aggregate Class Certificate Balance of the Senior Certificates of
each such
Group. In addition, if on any Distribution Date the aggregate Class
Certificate
Balance of the Senior Certificates of a Crossed Group (but not the
Class 15-PO
Certificates) is greater than the Adjusted Pool Amount (Non-PO
Portion) of the
related Crossed Loan Groups (any such Group, the "Crossed
Undercollateralized
Group" and any such excess, the "Crossed Undercollateralized
Amount"), all
amounts otherwise distributable as principal on the Class X-B
Certificates
pursuant to 5.02(a)(iv)(L), (J), (H), (F), (D) and (B), in that
order, will be
paid as principal to the Senior Certificates (but not the Class
15-PO
Certificates) of the Crossed Undercollateralized Group in
accordance with the
priorities set forth for the applicable Group above under (i),
(iii) or (iv)
until the aggregate Class Certificate Balance of the Senior
Certificates (but
not the Class 15-PO Certificates) of the 30 Year Crossed
Undercollateralized
Group equals the Adjusted Pool Amount (Non-PO Portion) of the
Related Loan
Group. Also, the amount of any Class Unpaid Interest Shortfalls and
Component
Unpaid Interest Shortfalls with respect to the Crossed
Undercollateralized Group
(including any Class Unpaid Interest Shortfalls and Component
Unpaid Interest
Shortfalls for such Distribution Date) will be paid to the
Crossed
Undercollateralized Group including the Class IO Component, if any,
of such
Group pursuant to Section 5.02(a)(i) prior to the payment of any
Crossed
Undercollateralized Amount from amounts otherwise distributable as
principal on
the Class X-B Certificates pursuant to 5.02(a)(iv)(L), (J) (H),
(F), (D) and
(B), in that order: such amount will be paid to the Senior
Certificates and
Class IO Component of such Crossed Undercollateralized Group up to
their
Interest Distribution Amounts or Component Interest Distribution
Amount, as
applicable, for such Distribution Date. If two Groups are
Undercollateralized
Groups, the distributions described above will be made, pro rata,
in proportion
to the amount by which the aggregate Class Certificate Balance of
the Senior
Certificates of each such Group exceeds the Adjusted Pool Amount
(Non-PO
Portion) of the related Loan Group.
The PO Deferred Amounts for the Class 1-X-PO Component and
Class
3-X-PO Component and the Class 15-PO Certificates will be paid from
amounts
otherwise distributable as principal on the Class X-B Certificates
before any
payments are made pursuant to the preceding paragraph.
(c) On each Distribution Date, Accrued Certificate Interest and
Accrued Component Interest, as applicable, for each Class of Group
1 Senior
Certificates, each Class of Group 3 Senior Certificates, each Class
of Group 4
Senior Certificates, the Class 1-30-IO Component and each Class of
Class X-B
Certificates for such Distribution Date shall be reduced by such
Class' or
Component's pro rata share, based on such Class' Interest
Distribution Amount or
Component's Component Interest Distribution Amount, as applicable,
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
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 such Loan Groups during the calendar month preceding the
month of such
Distribution Date.
On each Distribution Date, Accrued Certificate Interest and
Accrued
Component Interest, as applicable, for each Class of Group 2
Senior
Certificates, the Class 2-30-IO Component and each Class of Class
2-B
Certificates for such Distribution Date shall be reduced by such
Class' or
Component's pro rata share, based on such Class' Interest
Distribution Amount or
Component's Interest Distribution Amount, as applicable, 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 2, (B) on
and after the
applicable Senior Credit Support Depletion Date, any other Realized
Loss on the
Group 2 Mortgage Loans allocable to interest and (C) Relief Act
Reductions
incurred on the Group 2 Mortgage Loans during the calendar month
preceding the
month of such Distribution Date.
On each Distribution Date, Accrued Certificate Interest for
each
Class of Group 5 Senior Certificates and each Class of Class 5-B
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 5, (B) on and
after the
applicable Senior Credit Support Depletion Date, any other Realized
Loss on the
Group 5 Mortgage Loans allocable to interest and (C) Relief Act
Reductions
incurred on the Group 5 Mortgage Loans during the calendar month
preceding the
month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in
Section
5.02(a)(iv), if with respect to any Class of Class X-B
Certificates, Class 2-B
Certificates or Class 5-B Certificates on any Distribution Date,
(i) the
aggregate of the Class Certificate Balances immediately prior to
such
Distribution Date of all Classes of Class X-B Certificates, Class
2-B
Certificates or Class 5-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 (Non-PO Portion) for Loan Group 1, Loan
Group 3 and
Loan Group 4 in the case of the Class X-B Certificates, the Pool
Stated
Principal Balance (Non-PO Portion) for Loan Group 2 in the case of
the Class 2-B
Certificates and the Pool Stated Principal Balance (Non-PO Portion)
for Loan
Group 5 in the case of the Class 5-B Certificates (for each Class,
the
"Fractional Interest") is less than the Original Fractional
Interest for such
Class, no distribution of principal will be made to any Classes of
Class X-B
Certificates, Class 2-B Certificates or Class 5-B Certificates
junior to such
Class (the "Restricted Classes") and the Class Certificate Balances
of the
Restricted Classes of Class X-B Certificates, Class 2-B
Certificates or Class
5-B Certificates will not be used in determining the Pro Rata Share
for the
Class X-B Certificates, Class 2-B Certificates or Class 5-B
Certificates that
are not Restricted Classes. If the aggregate Class Certificate
Balances of the
Class X-B Certificates, Class 2-B Certificates or Class 5-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 X-B
Certificates, Class 2-B Certificates or Class 5-B Certificates that
are
Restricted Classes of such Related Group in order of their
respective numerical
Class designations (beginning with the Class of Class X-B
Certificates, Class
2-B Certificates or Class 5-B Certificates that is a Restricted
Class then
outstanding with the lowest numerical Class designation).
&nbs
