EXHIBIT 4
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BANC OF AMERICA FUNDING CORPORATION,
as
Depositor,
WELLS FARGO BANK, N.A.,
as a Master Servicer and Securities Administrator,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Master Servicer and Representing Party,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
_______________________
Mortgage Pass-Through Certificates
Series 2004-D
==============================================================================
<PAGE>
TABLE OF CONTENTS
PRELIMINARY
STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
Section 1.02 Interest
Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans.................................
Section 2.02
Acceptance by the Trustee or Custodian of the Mortgage
Loans.......................................................
Section 2.03
Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 2.04
Representations and Warranties 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.......................
Section 2.09
Repurchase of Converted Mortgage Loans.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master
Servicing of the Mortgage Loans.......................
Section 3.02
Monitoring of WF Servicers...................................
Section 3.03 Fidelity
Bond; Errors and Omissions Insurance................
Section 3.04 Access to
Certain Documentation..............................
Section 3.05
Maintenance of Primary Mortgage Insurance Policy; Claims.....
Section 3.06 Rights of
the Depositor, the Securities Administrator and
the Trustee in Respect of the Master Servicers..............
Section 3.07 Trustee
to Act as Master Servicer............................
Section 3.08 Servicer
Custodial Accounts and Escrow Accounts..............
Section 3.09
Collection of Mortgage Loan Payments; Master Servicer
Custodial Accounts and Certificate Account..................
Section 3.10 Access to
Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted
Withdrawals from the Certificate Account, the
Master Servicer Custodial Accounts and the Servicer
Custodial Accounts..........................................
Section 3.12
Maintenance of Hazard Insurance and Other Insurance..........
Section 3.13
Presentment of Claims and Collection of Proceeds.............
Section 3.14
Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.15
Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.16 Trustee
to Cooperate; Release of Mortgage Files..............
Section 3.17
Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.........................
Section 3.18 Master
Servicer Compensation and Servicer Compensation.......
Section 3.19 Annual
Statement as to Compliance............................
Section 3.20 Annual
Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.21
Advances.....................................................
Section 3.22 Reports
to the Securities and Exchange Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master
Servicer's Certificate................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02
Priorities of Distributions..................................
Section 5.03
Allocation of Losses.........................................
Section 5.04
Statements to Certificateholders.............................
Section 5.05 Tax
Returns and Reports to Certificateholders................
Section 5.06 Tax
Matters Person...........................................
Section 5.07 Rights of
the Tax Matters Person in Respect of the
Securities Administrator....................................
Section 5.08 REMIC
Related Covenants......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02
Registration of Transfer and Exchange of Certificates........
Section 6.03
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons
Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICERS
Section 7.01
Respective Liabilities of the Depositor and the Master
Servicers...................................................
Section 7.02 Merger or
Consolidation of the Depositor or the Master
Servicers...................................................
Section 7.03
Limitation on Liability of the Depositor, the Master
Servicers and Others........................................
Section 7.04 Depositor
and Master Servicers Not to Resign.................
Section 7.05 WMMSC
Master Servicer's Covenant Not to Solicit..............
Section 7.06 Covenant
to Disclose Servicing Deficiencies..................
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 a Master Servicer and
upon Event of Default.......................................
Section 8.05 Trustee
to Act; Appointment of Successor.....................
Section 8.06
Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of
Trustee and Securities Administrator...............
Section 9.02 Certain
Matters Affecting the Trustee and the Securities
Administrator...............................................
Section 9.03 Neither
Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee
and Securities Administrator May Own Certificates....
Section 9.05
Eligibility Requirements for Trustee and the Securities
Administrator...............................................
Section 9.06
Resignation and Removal of Trustee and the Securities
Administrator...............................................
Section 9.07 Successor
Trustee or Securities Administrator................
Section 9.08 Merger or
Consolidation of Trustee or Securities
Administrator...............................................
Section 9.09
Appointment of Co-Trustee or Separate Trustee................
Section 9.10
Authenticating Agents........................................
Section 9.11
Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses.................................
Section 9.12
Appointment of Custodian.....................................
Section 9.13 Paying
Agents................................................
Section 9.14
Limitation of Liability......................................
Section 9.15 Trustee
or Securities Administrator May Enforce Claims
Without Possession of Certificates..........................
Section 9.16 Suits for
Enforcement........................................
Section 9.17 Waiver of
Bond Requirement...................................
Section 9.18 Waiver of
Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01
Termination upon Purchase or Liquidation of All Mortgage
Loans......................................................
Section 10.02
Additional Termination Requirements.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment...................................................
Section 11.02
Recordation of Agreement; Counterparts......................
Section 11.03
Limitation on Rights of Certificateholders..................
Section 11.04
Governing Law...............................................
Section 11.05
Notices.....................................................
Section 11.06
Severability of Provisions..................................
Section 11.07
Certificates Nonassessable and Fully Paid...................
Section 11.08 Access
to List of Certificateholders........................
Section 11.09
Recharacterization..........................................
EXHIBITS
--------
Exhibit A-1-A-1 Form of
Face of Class 1-A-1 Certificate
Exhibit A-1-A-R Form of
Face of Class 1-A-R Certificate
Exhibit A-1-A-LR Form of Face of
Class 1-A-LR Certificate
Exhibit A-2-A-1 Form of
Face of Class 2-A-1 Certificate
Exhibit A-3-A-1 Form of
Face of Class 3-A-1 Certificate
Exhibit A-4-A-1 Form of
Face of Class 4-A-1 Certificate
Exhibit A-5-A-1 Form of
Face of Class 5-A-1 Certificate
Exhibit A-5-A-2 Form of
Face of Class 5-A-2 Certificate
Exhibit B-1
Form of Face of Class B-1 Certificate
Exhibit B-2
Form of Face of Class B-2 Certificate
Exhibit B-3
Form of Face of Class B-3 Certificate
Exhibit B-4
Form of Face of Class B-4 Certificate
Exhibit B-5
Form of Face of Class B-5 Certificate
Exhibit B-6
Form of Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates
Exhibit D-1
Loan Group 1 Mortgage Loan Schedule
Exhibit D-2
Loan Group 2 Mortgage Loan Schedule
Exhibit D-3
Loan Group 3 Mortgage Loan Schedule
Exhibit D-4
Loan Group 4 Mortgage Loan Schedule
Exhibit D-5
Loan Group 5 Mortgage Loan Schedule
Exhibit E
Request for Release of Documents
Exhibit F
Form of Certification of Establishment of Account
Exhibit G-1
Form of Transferor's Certificate
Exhibit G-2A
Form 1 of Transferee's Certificate
Exhibit G-2B
Form 2 of Transferee's Certificate
Exhibit H
Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I
Form of Affidavit Regarding Transfer of Residual
Certificates
Exhibit J
[Reserved]
Exhibit K
[Reserved]
Exhibit L
List of Recordation States
Exhibit M
Form of Initial Certification
Exhibit N
Form of Final Certification
Exhibit O
Form of Certification
Exhibit P
Form of Securities Administrator's Certification
Exhibit Q
Form of WMMSC Master Servicer's Certification
Exhibit R
Form of WF Master
Servicer's Certification
Exhibit S
Form of Custodial Agreement
Exhibit T
Excerpts from S&P's LEVELS(R) Glossary
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2004,
is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION,
as depositor
(together with its permitted successors and assigns, the
"Depositor"), WELLS
FARGO BANK, N.A., as a master servicer (together with its permitted
successors
and assigns, in such capacity, the "WF Master Servicer") and as
securities
administrator (together with its permitted successors and assigns,
in such
capacity, the "Securities Administrator"), WASHINGTON MUTUAL
MORTGAGE SECURITIES
CORP., as a master servicer (together with its permitted successors
and assigns,
in such capacity, the "WMMSC Master Servicer" and together with the
WF Master
Servicer, the "Master Servicers" and each, a "Master Servicer") and
as
representing party (together with its permitted successors and
assigns, in such
capacity, the "Representing Party") and WACHOVIA BANK, NATIONAL
ASSOCIATION, as
trustee (together with its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T
H A T:
- - - - - - - - - - -
- - -
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicers, the Representing Party, the
Securities
Administrator and the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the Trust. The Trust Estate
for federal
income tax purposes will be treated as six real estate mortgage
investment
conduits (each, a "REMIC"). The WF Group 4 Call Right Mortgage
Loans shall be
the assets of the WF Group 4 REMIC. The WF Group 4 Regular Interest
shall
constitute the "regular interest" and the Class 1-LR-A Interest
shall be the
"residual interest" in the WF Group 4 REMIC. The WF Remaining Call
Right
Mortgage Loans shall be the assets of the WF RCR REMIC. The WF RCR
Regular
Interest shall constitute the "regular interest" and the Class
1-LR-B Interest
shall be the "residual interest" in the WF RCR REMIC. The Group 1
Mortgage Loans
shall be the assets of the WMMSC Group 1 REMIC. The WMMSC Group 1
Regular
Interest shall constitute the "regular interest" and the Class
1-LR-C Interest
shall be the "residual interest" in the WMMSC Group 1 REMIC. The
WMMSC Group 4
Call Right Mortgage Loans shall be the assets of the WMMSC Group 4
REMIC. The
WMMSC Group 4 Regular Interest shall constitute the "regular
interest" and the
Class 1-LR-D Interest shall be the "residual interest" in the WMMSC
Group 4
REMIC. The WF Group 4 Regular Interest, the WF RCR Regular
Interest, the WMMSC
Group 1 Regular Interest and the WMMSC Group 4 Regular Interest
shall be the
assets of the Pooling REMIC. The Uncertificated Pooling REMIC
Interests shall
constitute the "regular interests" and the Class 1-LR-E Interest
shall be the
"residual interest in the Pooling REMIC. The Uncertificated Pooling
REMIC
Interests shall constitute the assets of the Upper-Tier REMIC. The
Senior
Certificates (other than the Class 1-A-R and Class 1-A-LR
Certificates) and the
Class B Certificates are referred to collectively as the "Regular
Certificates"
and shall constitute "regular interests" in the Upper-Tier REMIC.
The Class
1-A-R Certificate shall be the "residual interest" in the
Upper-Tier REMIC. The
Class 1-A-LR Certificate will represent ownership of the Class
1-LR-A Interest,
the Class 1-LR-B Interest, the Class 1-LR-C Interest, the Class
1-LR-D Interest
and the Class 1-LR-E Interest. The Certificates, the Uncertificated
Pooling
REMIC Interests and the Uncertificated Group REMIC Interests will
represent the
entire beneficial ownership interest in the Trust. The "latest
possible maturity
date" for federal income tax purposes of all interests created
hereby will be
the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the
Certificates,
together with the minimum denominations and integral multiples in
excess thereof
in which the Classes of Certificates shall be issuable:
<PAGE>
<TABLE>
<CAPTION>
=========================== =================================
====================== =======================
======================
Integral Multiples
Initial Class Certificate
Minimum
in Excess
Classes
Balance
Pass-Through Rate
Denomination
of Minimum
--------------------------- ---------------------------------
---------------------- -----------------------
----------------------
<S>
<C>
<C>
<C>
<C>
Class 1-A-1
$106,410,000.00
(1)
$1,000
$1
Class 1-A-R
$50.00
(1)
$50
N/A
Class 1-A-LR
$50.00
(1)
$50
N/A
Class 2-A-1
$47,696,000.00
(2)
$1,000
$1
Class 3-A-1
$42,331,000.00
(3)
$1,000
$1
Class 4-A-1
$32,434,000.00
(4)
$1,000
$1
Class 5-A-1
$137,921,000.00
(5)
$1,000
$1
Class 5-A-2
$3,082,000.00
(5)
$1,000
$1
Class B-1
$5,389,000.00
(6)
$25,000
$1
Class B-2
$3,848,000.00
(6)
$25,000
$1
Class B-3
$2,117,000.00
(6)
$25,000
$1
Class B-4
$1,155,000.00
(6)
$25,000
$1
Class B-5
$770,000.00
(6)
$25,000
$1
Class B-6
$1,732,237.00
(6)
$25,000
$1
--------------------------- ---------------------------------
---------------------- -----------------------
----------------------
</TABLE>
---------------------
(1) For each
Distribution Date, interest will accrue on these Certificates
at
a per
annum rate equal to the Net WAC for the Group 1 Mortgage Loans.
(2) For each
Distribution Date, interest will accrue on these Certificates
at
a per
annum rate equal to the Net WAC for the Group 2 Mortgage Loans.
(3) For each
Distribution Date, interest will accrue on these Certificates
at
a per
annum rate equal to the Net WAC for the Group 3 Mortgage Loans.
(4) For each
Distribution Date, interest will accrue on these Certificates
at
a per
annum rate equal to the Net WAC for the Group 4 Mortgage Loans.
(5) For each
Distribution Date, interest will accrue on these Certificates
at
a per
annum rate equal to the Net WAC for the Group 5 Mortgage Loans.
(6) Interest
will accrue on these Certificates as of any Distribution Date
at
a per
annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of the Net WAC for each of
the
Group 1,
Group 2, Group 3, Group 4 and Group 5 Mortgage Loans.
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the context otherwise requires,
shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class, one month's interest accrued during the
related Interest
Accrual Period at the applicable Pass-Through Rate on the
applicable Class
Certificate Balance.
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, WF Servicer Periodic
Advances, WMMSC
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.
Administrative Fee Rate: With respect to each Mortgage Loan, the
sum
of (i) the Servicing Fee Rate, (ii) solely with respect to the
WMMSC Master
Serviced Loans, the WMMSC Master Servicing Fee Rate and (iii) the
Securities
Administrator Fee Rate.
Advance: A WMMSC Advance, a WF Servicer Periodic Advance or a
WF
Servicer Servicing Advance.
Advance Date: As to any Distribution Date and (a) the WF Master
Serviced Loans, the Business Day preceding the related Remittance
Date and (b)
the WMMSC Master Serviced Loans, 11:30 a.m., Eastern time, on the
Business Day
immediately preceding such Distribution Date.
Aggregate 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 by
the aggregate
Pool Stated Principal Balance of all the Loan Groups.
Aggregate Subordinate Percentage: As to any Distribution Date,
the
aggregate Class Certificate Balance of the Subordinate Certificates
divided by
the aggregate Pool Stated Principal Balance for all the Loan
Groups.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements hereto.
Amounts Held for Future Distribution: As to any Distribution
Date
and Loan Group, the total of the amounts held in the WMMSC Master
Servicer
Custodial Account at the close of business on the preceding
Determination Date
on account of (i) Payoffs received after the Payoff Period related
to such
Distribution Date, (ii) Curtailments received or made in the month
of such
Distribution Date, (iii) Liquidation Proceeds received or made on
the WMMSC
Master Serviced Loans in such Loan Group in the month of such
Distribution Date
and (iv) payments which represent receipt of Monthly Payments made
on the WMMSC
Master Serviced Loans in such Loan Group in respect of a Due Date
or Due Dates
subsequent to the related Due Date.
Ancillary Income: All prepayment premiums (if any), assumption
fees,
late payment charges and all other ancillary income and fees with
respect to the
Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value determined in an appraisal
obtained by the
originator at origination of such Mortgage Loan or, in certain
cases, an
automated valuation model or tax assessed value and (b) the sales
price for such
property, except that, in the case of Mortgage Loans the proceeds
of which were
used to refinance an existing mortgage loan, the Appraised Value of
the related
Mortgaged Property is the appraised value thereof determined in an
appraisal
obtained at the time of refinancing or, in certain cases, an
automated valuation
model or tax assessed value, or (ii) the appraised value determined
in an
appraisal made at the request of a Mortgagor subsequent to
origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage
Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument in recordable form,
sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property
is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
BANA Servicing Agreement: The Servicing Agreement, dated
December
29, 2004, by and between BAFC, as depositor, and BANA, as
servicer.
Book-Entry Certificate: All Classes of Certificates other than
the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the State of Illinois, the
State of North
Carolina, the State of New York, the State of Minnesota, the State
of Maryland,
the State of Washington, the states in which the master servicing
offices of
either Master Servicer is located or the state or states in which
the Corporate
Trust Offices of the Trustee and the Securities Administrator are
located are
required or authorized by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section
5.03(d).
Call Right Holder: Each of the WF Master Servicer and the WMMSC
Master Servicer, in respect of their right to purchase certain
groups of
Mortgage Loans as set forth in Section 10.01.
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2004-D that are issued pursuant
to this
Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to Section 3.09(a) in the
name of the
Securities Administrator, on behalf of the Trustee, for the benefit
of the
Certificateholders and designated "Wells Fargo Bank, N.A., as
Securities
Administrator for Wachovia Bank, National Association, as Trustee,
in trust for
registered holders of Banc of America Funding Corporation Mortgage
Pass-Through
Certificates, Series 2004-D." The Certificate Account shall be
deemed to consist
of six sub-accounts; one for each of (i) the WF Group 4 Call Right
Mortgage
Loans ("Sub-Account WF-4"), (ii) the Group 2, Group 3 and Group 5
Mortgage Loans
("Sub-Account WF-RCR"), (iii) the Group 1 Mortgage Loans
("Sub-Account
WMMSC-1"), (iv) the WMMSC Group 4 Call Right Mortgage Loans
("Sub-Account
WMMSC-4"), ((i) through (iv) collectively, the "Group REMIC
Sub-Accounts"), and
the sub-accounts referred to herein as the Pooling REMIC
Sub-Account and the
Upper-Tier Certificate Sub-Account. Funds in the Certificate
Account shall be
held in trust for the Holders of the Certificates for the uses and
purposes set
forth in this Agreement.
Certificate Balance: With respect to any Certificate at any
date,
the maximum dollar amount of principal to which the Holder thereof
is then
entitled hereunder, such amount being equal to the product of the
Percentage
Interest of such Certificate and the Class Certificate Balance of
the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable to the Depository and
selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a Book-Entry Certificate.
With respect to
any Definitive Certificate, the Certificateholder of such
Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor, the Master Servicers or any affiliate
thereof shall be
deemed not to be outstanding and the Percentage Interest and Voting
Rights
evidenced thereby shall not be taken into account in determining
whether the
requisite amount of Percentage Interests or Voting Rights, as the
case may be,
necessary to effect any such consent has been obtained, unless such
entity is
the registered owner of the entire Class of Certificates, provided
that the
Securities Administrator shall not be responsible for knowing that
any
Certificate is registered in the name of an affiliate of the
Depositor or the
Master Servicers unless one of its Responsible Officers has actual
knowledge
thereof.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-R,
Class
1-A-LR, Class 2-A-1, Class 3-A-1, Class 4-A-1, Class 5-A-1, Class
5-A-2, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, as
the case may be.
Class 5-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date, the amount, if any, by
which the Class
Certificate Balance of the Class 5-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 5-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class
Certificate Balance of the Class 5-A-2 Certificates with respect to
such
Distribution Date prior to any reduction for the Class 5-A-2 Loss
Allocation
Amount and (b) the Class 5-A-1 Loss Amount with respect to such
Distribution
Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class and any date
of
determination, and subject to Section 5.03(f), the Initial Class
Certificate
Balance of such Class minus (A) the sum of (i) all distributions of
principal
made with respect thereto, (ii) all reductions in Class Certificate
Balance
previously allocated thereto pursuant to Section 5.03(b) and (iii)
in the case
of the Class 5-A-2 Certificates, any reduction allocated thereto
pursuant to
Section 5.03(e) plus (B) the sum of (i) all increases in Class
Certificate
Balance previously allocated thereto pursuant to Section 5.03(b)
and (ii) in the
case of the Class 5-A-2 Certificates, any increases allocated
thereto pursuant
to Section 5.03(e).
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate
Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the
amount of
interest actually distributed on such Class on such Distribution
Date pursuant
to clause (i) of the definition of "Interest Distribution
Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class, the amount by which the aggregate
Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the
amount of
interest actually distributed on such Class on such prior
Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution
Amount."
Closing Date: December 29, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to each Distribution Date,
the
sum of (i) the sum of the WF Compensating Interest for each WF
Servicer and (ii)
the WMMSC Compensating Interest. To the extent that the aggregate
Prepayment
Interest Shortfall for a Distribution Date exceeds Compensating
Interest, the
Compensating Interest for such Distribution Date shall be allocated
among the
Loan Groups in proportion to the respective Prepayment Interest
Shortfalls
relating to such Loan Groups.
Conversion Date: The date on which a Mortgage Loan becomes a
Converted Mortgage Loan.
Converted Mortgage Loan: Any Mortgage Loan as to which the
related
Mortgagor has exercised its option pursuant to the related Mortgage
Note to
convert the adjustable rate of interest on such Mortgage Loan to a
fixed rate of
interest.
Cooperative: A private, cooperative housing corporation which
owns
or leases land and all or part of a building or buildings,
including apartments,
spaces used for commercial purposes and common areas therein and
whose board of
directors authorizes, among other things, the sale of Cooperative
Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling
building
owned or leased by a Cooperative, which unit the Mortgagor has an
exclusive
right to occupy pursuant to the terms of a proprietary lease or
occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the
Cooperative
Apartment occupied by the Mortgagor and relating to the related
Cooperative
Stock, which lease or agreement confers an exclusive right to the
holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of
a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing
statements and
(v) a stock power (or other similar instrument), and ancillary
thereto, a
Recognition Agreement, each of which was transferred and assigned
to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the
single
outstanding class of stock, partnership interest or other ownership
instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative
Loan,
the stock certificate or other instrument evidencing the related
Cooperative
Stock.
Corporate Trust Office: With respect to the Trustee, the
principal
office of the Trustee, which office at the date of the execution of
this
instrument is located at 401 South Tryon Street, Charlotte, North
Carolina,
28288-1179 Attention: Structured Finance Trust Services, BAFC,
Series 2004-D, or
at such other address as the Trustee may designate from time to
time by notice
to the Certificateholders, the Depositor, the Securities
Administrator and the
Master Servicers. With respect to the Securities Administrator, the
principal
corporate trust office of the Securities Administrator at which at
any
particular time its corporate trust business with respect to this
Agreement is
conducted, which office at the date of the execution of this
instrument is
located at 9062 Old Annapolis Road, Columbia, Maryland 21045-1951,
Attention:
Corporate Trust Services - BAFC 2004-D, and for certificate
transfer purposes is
located at Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479,
Attention: Corporate Trust Services - BAFC 2004-D, or at such other
address as
the Securities Administrator may designate from time to time by
notice to the
Certificateholders, the Depositor, the Trustee and the Master
Servicers.
Curtailment: Any payment of principal on a WMMSC Master
Serviced
Loan, made by or on behalf of the related Mortgagor, other than a
Monthly
Payment, a Prepaid Monthly Payment or a Payoff, which is applied to
reduce the
outstanding principal balance of such WMMSC Master Serviced
Loan.
Custodial Agreement: Initially, the Custodial Agreement, dated
December 29, 2004, by and among the Trustee, the Depositor, WMMSC
and U.S. Bank
National Association, which agreement is attached hereto as Exhibit
S, and
thereafter any custodial agreement entered into pursuant to Section
9.12.
Custodian: Initially (i) with respect to the WMMSC Master
Serviced
Loans, U.S. Bank National Association, as Custodian, and (ii) with
respect to
the WF Master Serviced Loans, the Trustee and thereafter the
Custodian or
Custodians, if any, hereafter appointed by the Trustee pursuant to
Section 9.12.
A Custodian may (but need not) be the Trustee or any Person
directly or
indirectly controlling or controlled by or under common control of
either of
them. None of the Master Servicers, any Servicer or the Depositor,
or any Person
directly or indirectly controlling or controlled by or under common
control with
any such Person may be appointed Custodian.
Customary Servicing Procedures: With respect to (i) the WMMSC
Master
Servicer or any Servicer, procedures (including collection
procedures) that the
WMMSC Master Servicer or a Servicer customarily employs and
exercises in
servicing and administering mortgage loans for its own account and
which are in
accordance with accepted mortgage servicing practices of prudent
lending
institutions servicing mortgage loans of the same type as the
Mortgage Loans in
the jurisdictions in which the related Mortgaged Properties are
located and (ii)
with respect to the WF Master Servicer, those master servicing
procedures that
constitute customary and usual standards of practice of prudent
mortgage loan
master servicers.
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 $110,728,575.34 for Loan Group 1,
$49,631,666.80 for Loan
Group 2, $44,049,379.28 for Loan Group 3, $33,750,486.76 for Loan
Group 4 and
$146,725,229.31 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 of such
Mortgage Loan is pursuing an appeal of the court order giving rise
to any such
modification and (b)(1) such Mortgage Loan is not in default with
respect to
payment due thereunder in accordance with the terms of such
Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly Payments are being
advanced by the
applicable Servicer, the WMMSC Master Servicer, the WF Master
Servicer or the
Trustee, as applicable, in accordance with the terms of such
Mortgage Loan as in
effect on the Cut-off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for pursuant to Sections 2.02 or
2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then outstanding indebtedness under
such Mortgage
Loan over (ii) the secured valuation thereof established by a court
of competent
jurisdiction (pursuant to an order which has become final and
nonappealable) as
a result of a proceeding initiated by or against the related
Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant
to which
such Mortgagor retained such Mortgaged Property; provided that no
such excess
shall be considered a Deficient Valuation so long as (a) the
applicable Servicer
is pursuing an appeal of the court order giving rise to any such
modification
and (b)(1) such Mortgage Loan is not in default with respect to
payments due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the
applicable
Servicer, the WMMSC Master Servicer, the WF Master Servicer or the
Trustee, as
applicable, in accordance with the terms of such Mortgage Loan as
in effect on
the Cut-off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the
Trust Estate.
Depositor Indemnified Parties: As defined in Section 3.23(c).
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of the Book-Entry
Certificates or any
successor thereto appointed in accordance with this Agreement. The
Depository
shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from time to time a Depository
effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: With respect to any Distribution Date and
(a)
each WF Master Serviced Loan, as defined in the applicable
Servicing Agreement
and (b) each WMMSC Master Serviced Loan, a day not later than the
10th day
preceding such Distribution Date, as determined by the WMMSC Master
Servicer.
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).
Document Transfer Event: The 60th day following the day on
which
either (i) Wells Fargo Bank is no longer the Servicer of any of the
Mortgage
Loans purchased by the Seller pursuant to the Wells Fargo Sale
Agreements or
(ii) the senior, unsecured long-term debt rating of Wells Fargo
& Company is
less than "BBB-" by Fitch Ratings.
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
a federal or state chartered depository institution or trust
company the
short-term unsecured debt obligations of which (or, in the case of
a depository
institution or trust company that is the principal subsidiary of a
holding
company, the debt obligations of such holding company) have the
highest
short-term ratings of each Rating Agency at the time any amounts
are held on
deposit therein, or (ii) an account or accounts in a depository
institution or
trust company in which such accounts are insured by the FDIC (to
the limits
established by the FDIC) and the uninsured deposits in which
accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to
the Trustee, the Securities Administrator and to each Rating
Agency, the
Certificateholders have a claim with respect to the funds in such
account or a
perfected first priority security interest against any collateral
(which shall
be limited to Permitted Investments) securing such funds that is
superior to
claims of any other depositors or creditors of the depository
institution or
trust company in which such account is maintained, or (iii) a trust
account or
accounts maintained with the trust department of a federal or state
chartered
depository institution or trust company (including the Trustee and
the
Securities Administrator), acting in its fiduciary capacity or (iv)
any other
account acceptable to each Rating Agency. Eligible Accounts may
bear interest
and may include, if otherwise qualified under this definition,
accounts
maintained with the Trustee or the Securities Administrator.
Notwithstanding
anything in the foregoing to the contrary, an account shall not
fail to be an
Eligible Account solely because it is maintained with Wells Fargo
Bank, N.A., a
wholly owned subsidiary of Wells Fargo & Co., provided that
such subsidiary or
its parent's (A) commercial paper, short-term unsecured debt
obligations or
other short-term deposits are at least "P-1" in the case of Moody's
and "A-1+"
in the case of S&P, if the deposits are to be held in the
account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at
least "Aa3" in
the case of Moody's and "AA-" (or "A" (without regard to any plus
or minus), if
the short-term unsecured debt obligations are rated at least
"A-1+") in the case
of S&P, if the deposits are to be held in the account for more
than 30 days.
Eligible Institution: An institution having (i) the highest
short-term debt rating, and one of the two highest long-term debt
ratings of the
Rating Agencies, (ii) with respect to any WMMSC Master Servicer
Custodial
Account and WMMSC Escrow Account, an unsecured long-term debt
rating of at least
one of the two highest unsecured long-term debt ratings of the
Rating Agencies,
or (iii) the approval of the Rating Agencies. Such institution may
be the WMMSC
Servicer if the applicable Servicing Contract requires the WMMSC
Servicer to
provide the WMMSC Master Servicer with written notice on the
Business Day
following the date on which the WMMSC Servicer determines that such
WMMSC
Servicer's short-term debt and unsecured long-term debt ratings
fail to meet the
requirements of the prior sentence. Notwithstanding the foregoing,
Washington
Mutual Bank, FA shall be an "Eligible Institution" if the following
conditions
are satisfied: (i) Washington Mutual Bank, FA is acting as WMMSC
Servicer, (ii)
if S&P is a Rating Agency as defined herein, the long-term
unsecured debt
obligations of Washington Mutual Bank, FA are rated no lower than
"A-" by S&P
and the short-term unsecured debt obligations of Washington Mutual
Bank, FA are
rated no lower than "A-2" by S&P and (iii) if Moody's is a
Rating Agency as
defined herein, the long-term unsecured debt obligations of
Washington Mutual
Bank, FA are rated no lower than "A2" by Moody's and the short-term
unsecured
debt obligations of Washington Mutual Bank, FA are rated no lower
than "P-1" by
Moody's; provided, that if the long-term or short-term unsecured
debt
obligations of Washington Mutual Bank, FA are downgraded by any of
the Rating
Agencies to a rating lower than the applicable rating specified in
this
sentence, Washington Mutual Bank, FA shall cease to be an "Eligible
Institution"
five Business Days after notification of such downgrade.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Subordinate Certificate.
Escrow Account: A WF Escrow Account or WMMSC Escrow Account.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard
insurance premiums
and other payments as may be required to be escrowed by the
Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or
Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed
to the
applicable Servicer or the WMMSC Master Servicer, as applicable,
as
Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section
3.11(a)(iv) or Section 3.11(b)(iv), exceeds (i) the unpaid
principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in
which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at
the Mortgage Interest Rate from the Due Date as to which interest
was last paid
or for which an Advance (other than a WF Servicer Servicing
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.
FHA: Federal Housing Administration, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates will be made pursuant
to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated by the Depositor by
written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K: As defined in Section 3.23.
Fractional Interest: As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage
set
forth in the related Mortgage Note and indicated in the Mortgage
Loan Schedule
as the "Gross Margin," which percentage is added to the Index on
each Rate
Adjustment Date to determine (subject to rounding, the Periodic Cap
and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until the
next Rate
Adjustment Date.
Group: Any of Group 1, Group 2, Group 3, Group 4 or Group 5.
Group 1: The Group 1 Senior Certificates.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-R and Class
1-A-LR Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Senior Certificates: Class 2-A-1 Certificates.
Group 3: The Group 3 Senior Certificates.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Senior Certificates: Class 3-A-1 Certificates.
Group 4: The Group 4 Senior Certificates.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Senior Certificates: Class 4-A-1 Certificates.
Group 5: The Group 5 Senior Certificates.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Group 5 Senior Certificates: Class 5-A-1 and Class 5-A-2
Certificates.
Group REMIC: Any of the WF Group 4 REMIC, WF RCR REMIC, WMMSC
Group
1 REMIC and WMMSC Group 4 REMIC, as described in the Preliminary
Statement.
Group Subordinate Amount: With respect to any Distribution Date
and
any Loan Group, the excess of the Pool Stated Principal Balance for
such Loan
Group over the aggregate Class Certificate Balance of the Senior
Certificates of
the Related Group immediately prior to such date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact independent of the Depositor and
the Master
Servicers, (ii) does not have any direct financial interest or any
material
indirect financial interest in the Depositor and the Master
Servicers or in an
affiliate of any of them, and (iii) is not connected with the
Depositor or the
Master Servicers as an officer, employee, promoter, underwriter,
trustee,
partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of
the
One-Year CMT Index or the One-Year LIBOR Index. The Index
applicable to each
Mortgage Loan will be indicated on the Mortgage Loan Schedule. In
the event that
any such Index is no longer available, the applicable Servicer will
select a
substitute Index in accordance with the terms of the related
Mortgage Note and
in compliance with federal and state law.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance set forth in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any Primary Mortgage Insurance Policy or any other
insurance
policy (including any policy covering any Mortgage Loan or
Mortgaged Property,
including without limitation, any hazard insurance policy required
pursuant to
Section 3.12, any title insurance policy described in Section 2.04
and any FHA
insurance policies and VA insurance policies), including all riders
and
endorsements thereto in effect, including any replacement policy or
policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in
such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Certificates, the period from and including the first day of the
calendar
month preceding the calendar month of such Distribution Date to but
not
including the first day of the calendar month of such Distribution
Date.
Interest Distribution Amount: For any Distribution Date and
each
interest-bearing Class, the sum of (i) the Accrued Certificate
Interest, subject
to reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid
Interest
Shortfall for such Class.
Investment Depository: JPMorgan Chase Bank, or another bank or
trust
company designated from time to time by the WMMSC Master Servicer.
The
Investment Depository shall at all times be an Eligible
Institution.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
Prior Period and as to which the applicable WF Servicer has
certified (in
accordance with the applicable Servicing Agreement) or the WMMSC
Master Servicer
has determined in accordance with its Customary Servicing
Procedures 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,
WMMSC Master
Servicing Fees and Advances and, in the case of the WMMSC Master
Servicer or the
WMMSC Servicer, amounts reimbursable under Section 3.11(a)(ii).
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 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan Group 5: The Group 5 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed as a percentage, the
numerator of
which is the outstanding principal balance of the related Mortgage
Loan at
origination and the denominator of which is the Appraised Value of
the related
Mortgaged Property.
Lower-Tier REMICs: The Group REMICs and the Pooling REMIC.
Master Servicer: Either of the WF Master Servicer or the WMMSC
Master Servicer.
Master Servicer's Certificate: The monthly report required of
each
Master Servicer pursuant to Section 4.01.
Master Servicer Custodial Account: Either of the WF Master
Servicer
Custodial Account or the WMMSC Master Servicer Custodial
Account.
Master Servicer Custodial Account Reinvestment Income: Either of
the
WF Master Servicer Custodial Account Reinvestment Income or the
WMMSC Master
Servicer Custodial Account Reinvestment Income.
Master Servicing Officer: With respect to each Master Servicer,
any
officer of such Master Servicer involved in, or responsible for,
the
administration and master servicing of the Mortgage Loans whose
name appears on
a list of servicing officers furnished to the Securities
Administrator by the
related Master Servicer, as such list may from time to time be
amended.
Master Servicing Transfer Costs: All reasonable costs and
expenses
(including attorney's fees) incurred by the Trustee or a successor
master
servicer in connection with the transfer of master servicing or
servicing from a
predecessor master servicer, including, without limitation, any
costs or
expenses associated with the complete transfer of all master
servicing data or
servicing data and the completion, correction or manipulation of
such master
servicing data or servicing data as may be required by the Trustee
or successor
master servicer to correct any errors or insufficiencies in the
master servicing
data or servicing data or otherwise to enable the Trustee or a
successor master
servicer to master service or service, as the case may be, the
applicable
Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23.
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal and/or interest on such
Mortgage Loan
which, unless otherwise specified herein, shall give effect to any
related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing a Mortgage Note or
creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on the principal balance of
such Mortgage
Loan, as adjusted from time to time in accordance with the
provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate
Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate for
such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from
and after
such Rate Adjustment Date, the sum of the applicable Index, as of
the Rate
Adjustment Date applicable to such Due Date, and the Gross Margin,
rounded as
set forth in such Mortgage Note, subject to the Periodic Cap and
the Rate
Ceiling applicable to such Mortgage Loan at any time during the
life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 29, 2004, between BANA, as seller, and
the Depositor,
as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the related Master Servicer to reflect the addition
of
Substitute Mortgage Loans and the deletion of Defective Mortgage
Loans pursuant
to the provisions of this Agreement) transferred to the Trustee as
part of the
Trust Estate and from time to time subject to this Agreement,
attached hereto as
Exhibit D-1, Exhibit D-2, Exhibit D-3, Exhibit D-4 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) whether such Mortgage Loan is a Convertible Mortgage Loan;
(xvi) the
Appraised Value; (xvii) the first Rate Adjustment Date; (xviii) the
Rate
Ceiling; (xix) the Periodic Cap; (xx) the Gross Margin; (xxi) the
closing date
of such Mortgage Loan; (xxii) the Originator of such Mortgage Loan;
(xxiii) the
Servicer of such Mortgage Loan as of the Cut-off Date; and (xxiv)
the Master
Servicer 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 Cooperative Stock or residential long-term
leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the
first day of
the month preceding the month of the related Distribution Date
reduced by the
applicable Administrative Fee Rate for such Mortgage Loans.
Net WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage
Loans in
such Loan Group (based on Stated Principal Balances of the Mortgage
Loans in
such Loan Group on the Due Date in the month preceding the month of
such
Distribution Date).
Non-Supported Interest Shortfalls: As to any Distribution Date,
the
amount, if any, by which the aggregate of Prepayment Interest
Shortfalls exceeds
Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a Mortgage Loan which has not
been previously
reimbursed and which, in the good faith judgment of the applicable
Servicer or
the WMMSC Master Servicer, as applicable, will not or, in the case
of a proposed
Advance, would not be ultimately recoverable from the related
Mortgagor, related
Liquidation Proceeds, Insurance Proceeds or other recoveries in
respect of the
related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and the Class
B-1,
Class B-2 and Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board, President or a Vice President
and by the
Treasurer, the Secretary or one of the Assistant Treasurers or
Assistant
Secretaries, or any other duly authorized officer of the Depositor
or the Master
Servicers, as the case may be, and delivered to the Trustee or the
Securities
Administrator, as the case may be.
One-Year CMT Index: A rate per annum that is defined to be the
weekly average yield on United States Treasury Securities adjusted
to a constant
maturity of one year, as made available by the Federal Reserve
Board, published
in Federal Reserve Statistical Release H.15 (519) and most recently
available as
of the date 45 days before the applicable Rate Adjustment Date.
One-Year LIBOR Index: A rate per annum that is defined to be
the
average of interbank offered rates for one-year U.S.
dollar-denominated deposits
in the London market, as published in The Wall Street Journal and
most recently
available either (i) as of the first Business Day in the month
preceding the
month of the applicable Rate Adjustment Date or (ii) up to the date
45 days
before the applicable Rate Adjustment Date.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the Trustee, or acceptable
to the
Securities Administrator if such opinion is delivered to the
Securities
Administrator, who may be counsel for the Depositor or either
Master Servicer,
except that any opinion of counsel relating to the qualification of
the Trust
Estate as six REMICs or compliance with the REMIC Provisions must
be an opinion
of Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the corresponding percentage
described
below, as of the Closing Date:
Class B-1
2.50%
Class B-2
1.50%
Class B-3
0.95%
Class B-4
0.65%
Class B-5
0.45%
Class B-6
0.00%
Original Subordinate Certificate Balance: $15,011,237.00.
Originator: For each Mortgage Loan, the Person listed on the
Mortgage Loan Schedule as the originator.
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 (with respect
to a WF
Master Serviced Loan) or a Payoff (with respect to a WMMSC Master
Serviced Loan)
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 Sections 2.02, 2.04, 2.09 or 3.15(g).
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the
Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Payoff: Any Mortgagor payment of principal on a WMMSC Master
Serviced Loan equal to the entire outstanding Stated Principal
Balance of such
WMMSC Master Serviced Loan, if received in advance of the last
scheduled Due
Date for such WMMSC Master Serviced Loan and accompanied by an
amount of
interest equal to accrued unpaid interest on the WMMSC Master
Serviced Loan to
the date of such payment-in-full.
Payoff
Earnings: For any Distribution Date with respect to each
WMMSC Master Serviced Loan on which a Payoff was received by the
WMMSC Master
Servicer during the Payoff Period, the aggregate of the interest
earned by the
WMMSC Master Servicer from investment of each such Payoff from the
date of
receipt of such Payoff until the Business Day immediately preceding
the related
Distribution Date (net of investment losses).
Payoff Interest: For any Distribution Date with respect to a
WMMSC
Mortgage Loan for which a Payoff was received on or after the first
calendar day
of the month of such Distribution Date and before the 15th calendar
day of such
month, an amount of interest thereon at the applicable Net Mortgage
Interest
Rate from the first day of the month of distribution through the
day of receipt
thereof; to the extent (together with Payoff Earnings and the
aggregate WMMSC
Master Servicing Fee) not required to be distributed as WMMSC
Compensating
Interest on such Distribution Date, Payoff Interest shall be
payable to the
WMMSC Master Servicer as additional servicing compensation.
Payoff Period: For the first Distribution Date, the period from
the
Cut-off Date through December 14, 2004, inclusive; and for any
Distribution Date
thereafter, the period from the 15th day of the Prior Period
through the 14th
day of the month of such Distribution Date, inclusive.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance of such Certificate by
the Initial
Class Certificate Balance of the Class of which such Certificate is
a part.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment
Date specified
in the applicable Mortgage Note and designated as such in the
Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United
States, FHLMC, FNMA or any agency or instrumentality of the
United
States
when such obligations are backed by the full faith and credit
of
the United
States; provided that such obligations of FHLMC or FNMA shall
be limited
to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or
mortgage
participation securities with yields evidencing extreme sensitivity
to the
rate of
principal payments on the underlying mortgages, which shall not
constitute
Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing
not more than one month from the date of acquisition thereof
with
a
corporation incorporated under the laws of the United States or
any
state
thereof rated not lower than "P1" by Moody's and "A-1+" by
S&P;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits
and bankers' acceptances (which shall each have an original
maturity
of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365
days or a
remaining maturity of more than 30 days) denominated in United
States
dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state
thereof,
rated not
lower than "P1" by Moody's and "A-1+" by S&P;
(iv) commercial paper (having original maturities of not more
than
365 days)
of any corporation incorporated under the laws of the United
States or
any state thereof which is rated not lower than "P1" by Moody's
and "A-1+"
by S&P;
(v) investments in money market funds (including funds of the
Securities
Administrator or its affiliates, or funds for which an
affiliate
of the Securities Administrator acts as advisor, as well as
funds for
which the Securities Administrator and its affiliates may
receive
compensation) rated either "Aaa" by Moody's and "AAAm G" by S&P
or
otherwise
approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating
Agency and, as evidenced by an Opinion of Counsel obtained by
the
related
Master Servicer or Securities Administrator, as the case may
be,
will not
affect the qualification of the Trust Estate as six REMICs;
provided, however, that no instrument shall be a Permitted
Investment if it
represents either (a) the right to receive only interest payments
with respect
to the underlying debt instrument or (b) the right to receive both
principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of such
underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision thereof, or any agency
or
instrumentality of any of the foregoing, (ii) a foreign
government,
international organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization which is exempt from tax imposed
by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code
on unrelated
business taxable income) (except certain farmers' cooperatives
described in Code
Section 521), (iv) rural electric and telephone cooperatives
described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income
on a
Residual Certificate is allocable to a foreign permanent
establishment or fixed
base, within the meaning of an applicable income tax treaty, of
such Person or
any other U.S. Person, and (vi) any other Person so designated by a
Master
Servicer based on an Opinion of Counsel to the effect that any
transfer to such
Person may cause the Trust or any other Holder of a Residual
Certificate to
incur tax liability that would not be imposed other than on account
of such
transfer. The terms "United States," "State" and "international
organization"
shall have the meanings set forth in Code Section 7701 or successor
provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-LR, Class
B-4,
Class B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the sum of, for the Mortgage Loans in such Loan Group, the
following
amounts:
(A) with respect to the WF Master Serviced Loans in such Loan
Group,
the excess of (a) the sum of (i) the aggregate of (A) the interest
portion of
any Monthly Payment on a WF Master Serviced Loan in such Loan Group
and the
principal portion of any Monthly Payment on a WF Master Serviced
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 and (B) all
WF Servicer Periodic Advances made by a WF Servicer (or the WF
Master Servicer
or the Trustee, as applicable) in respect of such Loan Group and
payments of WF
Compensating Interest allocable to such Loan Group made by the
applicable
Servicer in respect of such Loan Group and such Distribution Date
deposited to
the WF Master Servicer Custodial Account pursuant to Section
3.09(c)(vi); (ii)
all Liquidation Proceeds received on the WF Master Serviced Loans
in such Loan
Group during the preceding calendar month and deposited to the WF
Master
Servicer Custodial Account pursuant to Section 3.09(c)(iii); (iii)
all Principal
Prepayments received on the WF Master Serviced Loans in such Loan
Group during
the month preceding the month of such Distribution Date and
deposited to the WF
Master Servicer Custodial Account pursuant to Section 3.09(c)(i)
during such
period; (iv) in connection with any WF Master Serviced Loans that
are Defective
Mortgage Loans or Converted Mortgage Loans in such Loan Group, the
aggregate of
the Purchase Prices and Substitution Adjustment Amounts remitted on
the related
Remittance Date pursuant to Section 3.09(c)(vii); (v) any other
amounts in the
WF Master Servicer Custodial Account deposited therein pursuant to
Section
3.09(c)(iv), (v) and (viii) in respect of such Distribution Date
and such Loan
Group; (vi) any WF Master Serviced Loan Reimbursement Amount
required to be
included pursuant to Section 5.02(a); and (vii) any Recovery with
respect to
such Distribution Date over (b) any amounts permitted to be
withdrawn from the
WF Master Servicer Custodial Account pursuant to clauses (i)
through (viii),
inclusive, of Section 3.11(b) in respect of such Loan Group;
and
(B) with respect to the WMMSC Master Serviced Loans, (1) the
total
amount of all cash received by or on behalf of the WMMSC Master
Servicer with
respect to such WMMSC Master Serviced Loans by the Determination
Date for such
Distribution Date and not previously distributed, including
Advances made by
WMMSC Servicers under any Servicing Contract, Insurance Proceeds
and Liquidation
Proceeds, except:
(a) all scheduled payments of principal and interest collected
but due subsequent to such Distribution Date;
(b) all Curtailments received after the Prior Period;
(c) all Payoffs received after the Payoff Period immediately
preceding such Distribution Date (together with any interest
payment
received with such Payoffs to the extent that it represents the
payment of interest accrued on the WMMSC Master Serviced Loans
for
the period subsequent to the Prior Period), and, without
duplication, interest which was accrued and received on Payoffs
received during the period from the 1st to the 14th day of the
month
of such Distribution Date, which interest shall not be included
in
the calculation of the Pool Distribution Amount for any
Distribution
Date;
(d) Insurance Proceeds and Liquidation Proceeds received on
the WMMSC Master Serviced Loans in such Loan Group after the
Prior
Period;
(e) all amounts in the WMMSC Master Servicer Custodial Account
or the Certificate Account which are due and reimbursable to a
WMMSC
Servicer or the WMMSC Master Servicer pursuant to the terms of
this
Agreement;
(f) the sum of the WMMSC Master Servicing Fee and the
Servicing Fee for each such WMMSC Master Serviced Loan in such
Loan
Group; and
(g) Excess Proceeds;
(2) the sum, to the extent not previously distributed, of the
following
amounts, to the extent advanced or received, as applicable, by
the WMMSC
Master Servicer:
(a) any Advance made by the WMMSC Master Servicer with respect
to such Distribution Date relating to such WMMSC Master
Serviced
Loans in such Loan Group; and
(b) any amounts payable as WMMSC Compensating Interest by
WMMSC on such Distribution Date allocable to WMMSC Master
Serviced
Loans in such Loan Group; and
(3) the total amount of any cash received during the Prior Period
by
the
Securities Administrator or the WMMSC Master Servicer in respect of
a
Purchase
Obligation under Section 2.02, 2.04 and 2.09 or any permitted
purchase
of a Mortgage Loan and any WMMSC Master Serviced Loan
Reimbursement Amounts to the extent specified in Section
5.02(a).
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans
in such Loan
Group that were Outstanding Mortgage Loans immediately following
the Due Date in
the month preceding the month in which such Distribution Date
occurs.
Pooling REMIC: As defined in the Preliminary Statement, the
assets
of which consist of the Uncertificated Group REMIC Regular
Interests and such
amounts as shall from time to time be held in the Pooling REMIC
Sub-Account.
Pooling REMIC Distribution Amount: As defined in Section 5.02.
Pooling REMIC Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Prepaid Monthly Payment: With respect to each WMMSC Master
Serviced
Loan, any Monthly Payment received prior to its scheduled Due Date,
which is
intended to be applied to a Mortgage Loan on its scheduled Due Date
and held in
the related Servicer Custodial Account until the Withdrawal Date
following its
scheduled Due Date.
Prepayment Interest Shortfall: As to any Distribution Date and
(a)
each WF Master Serviced Loan subject to a Principal Prepayment
received during
the calendar month preceding such Distribution Date, the amount, if
any, by
which one month's interest at the related Mortgage Interest Rate
(net of the
Servicing Fee Rate) on such Principal Prepayment exceeds the amount
of interest
paid in connection with such Principal Prepayment and (b) each
WMMSC Master
Serviced Loan, the sum of the deficiency in interest as a result of
any Payoff
on a WMMSC Master Serviced Loan during the portion of the related
Prepayment
Period occurring in the calendar month preceding the month of such
Distribution
Date and the interest deficiency from any Curtailment on a WMMSC
Master Serviced
Loan during the related Prepayment Period.
Prepayment Period: With respect to any Distribution Date and (i)
any
partial prepayments on the Mortgage Loans is the calendar month
preceding the
month of such Distribution Date, (ii) any Principal Prepayments In
Full on the
WF Master Serviced Loans is the calendar month preceding the month
of such
Distribution Date and (iii) any Payoffs on the WMMSC Master
Serviced Loans is
the period commencing on the 15th day of the month preceding the
month of such
Distribution Date (or on the Cut-off Date, in the case of the
initial
Distribution Date) and ending on the 14th day of the month of such
Distribution
Date.
Primary Mortgage Insurance Policy: Each policy of primary
mortgage
guaranty insurance or any replacement policy therefor with respect
to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA
or FHLMC.
Principal Amount: As to any Distribution Date and Loan Group,
the
sum of (a) the principal portion of each Monthly Payment due on
each Mortgage
Loan in such Loan Group on the related Due Date, (b) the Stated
Principal
Balance, as of the date of repurchase, of (i) each WF Master
Serviced Loan in
such Loan Group that was repurchased by a WF Servicer pursuant to
the applicable
Servicing Agreement or the Seller's Warranties and Servicing
Agreement, dated as
of November 1, 2004, by and between BANA and Wells Fargo Bank, as
the case may
be, as of such Distribution Date, (ii) each WMMSC Master Serviced
Loan that was
repurchased pursuant to a Purchase Obligation during the Prior
Period relating
to such Distribution Date, (iii) any Mortgage Loan repurchased by
the Seller
pursuant to the Mortgage Loan Purchase Agreement or a Purchase
Obligation as of
such Distribution Date or (iv) any Mortgage Loan repurchased by the
Depositor
pursuant to a Purchase Obligation, (c) any Substitution Adjustment
Amount in
connection with a Defective Mortgage Loan in such Loan Group
received with
respect to such Distribution Date, (d) any Liquidation Proceeds
allocable to
recoveries of principal of Mortgage Loans in such Loan Group that
are not yet
Liquidated Mortgage Loans received by a WF Servicer or the WMMSC
Master
Servicer, as applicable, during the Prior Period relating to such
Distribution
Date, (e) with respect to each Mortgage Loan in such Loan Group
that became a
Liquidated Mortgage Loan during the Prior Period relating to such
Distribution
Date, the amount of Liquidation Proceeds (excluding Excess
Proceeds) allocable
to principal received by a WF Servicer or the WMMSC Master
Servicer, as
applicable, with respect to such Mortgage Loan during such Prior
Period, (f) (i)
with respect to each WF Master Serviced Loan, all Principal
Prepayments on the
Mortgage Loans in such Loan Group received by a WF Servicer during
the Prior
Period and (ii) with respect to each WMMSC Master Serviced Loan,
all Payoffs
received on the WMMSC Master Serviced Loans in such Loan Group
during the Payoff
Period relating to such Distribution Date and all Curtailments
received on the
WMMSC Mortgage Loans in such Loan Group during the Prior Period
relating to such
Distribution Date and (g) any other principal recoveries not
described in (a)
through (f) of this definition, including any Recoveries, received
on the
Mortgage Loans in such Loan Group during the Prior Period relating
to such
Distribution Date.
Principal Prepayment: With respect to (a) each WF Master
Serviced
Loan, any payment or other recovery of principal on a WF Master
Serviced 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 and (b) each WMMSC Master Serviced Loan, any payment
of principal
on a WMMSC Master Serviced Loan which constitutes a Payoff or a
Curtailment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a WF Master Serviced Loan.
Prior Period: With respect to any Distribution Date, the
calendar
month immediately preceding the month of such Distribution
Date.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the
portion of the
Subordinate Principal Distribution Amounts allocable to such Class,
equal to the
product of the Subordinate Principal Distribution Amounts for such
Distribution
Date and a fraction, the numerator of which is the related Class
Certificate
Balance thereof and the denominator of which is the aggregate Class
Certificate
Balance of the Subordinate Certificates that are not Restricted
Classes. The Pro
Rata Share of a Restricted Class shall be 0%. The Pro Rata Share of
a Class of
Subordinate Certificates may be computed for each of clause (i) and
clause (ii)
of the definition of "Subordinate Principal Distribution Amount" in
the event
the Restricted Classes differ with respect to each clause.
Purchase Obligation: An obligation of the Seller, the Depositor
or
the WMMSC Master Servicer to purchase Mortgage Loans under the
circumstances and
in the manner provided in Section 2.02, 2.04 or 2.09.
Purchase Price: With respect to each Mortgage Loan that was a
Defective Mortgage Loan repurchased on any date pursuant to
Sections 2.02 or
2.04 or a Converted Mortgage Loan repurchased on any date pursuant
to Section
2.09, an amount equal to (a) in the case of a WMMSC Master Serviced
Loan, the
sum of (i) the unpaid principal balance thereof, (ii) the unpaid
accrued
interest thereon at the applicable Mortgage Interest Rate from the
Due Date to
which interest was last paid by the Mortgagor to the first day of
the month
following the month in which such Mortgage Loan became eligible to
be
repurchased and (iii) any costs and damages incurred by the Trust
in connection
with any violation by such repurchased Mortgage Loan of any
predatory or abusive
lending law and (b) in the case of a WF Master Serviced Loan, the
sum of (i) the
Stated Principal Balance of the Mortgage Loan, (ii) interest on
such Stated
Principal Balance at the Mortgage Interest Rate from the date on
which interest
has last been paid and distributed through the last day of the
month in which
such repurchase takes place and (iii) any costs and damages
incurred by the
Trust in connection with any violation by such repurchased WF
Master Serviced
Loan of any predatory or abusive lending law, less (x) amounts
received or
advanced in respect of such repurchased WF Master Serviced Loan
which are being
held in the applicable Servicer Custodial Account for distribution
in the month
of repurchase and (y) if the Person repurchasing such Mortgage Loan
is servicing
such WF Master Serviced Loan under the related Servicing Agreement,
the
Servicing Fee for such Mortgage Loan.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which an adjustment to the Mortgage Interest Rate of such Mortgage
Loan becomes
effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note and indicated on the Mortgage Loan
Schedule.
Rating Agency: Each of Moody's and S&P. If either such
organization
or a successor is no longer in existence, "Rating Agency" shall be
such
nationally recognized statistical rating organization, or other
comparable
Person, as is designated by the Depositor, notice of which
designation shall be
given to the Trustee, the Master Servicers and the Securities
Administrator.
References herein to a given rating or rating category of a Rating
Agency shall
mean such rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation, equal to (i) the unpaid
principal
balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date
as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Net Mortgage Interest Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that
has become the
subject of a Deficient Valuation, if the principal amount due under
the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become the
subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Monthly Payment has been
reduced.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of
such
Cooperative Loan.
Record Date: The last day of the month (or, if such day is not
a
Business Day, the preceding Business Day) preceding the month of
the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such
Mortgage Loan being determined to be a Liquidated Mortgage
Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: Either of the WF Master Serviced Loan
Reimbursement Amount or the WMMSC Master Serviced Loan
Reimbursement Amount.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group
2;
for Loan Group 3, Group 3; for Loan Group 4, Group 4; and for Loan
Group 5,
Group 5.
Related Loan Group: For Group 1, Loan Group 1; for Group 2,
Loan
Group 2; for Group 3, Loan Group 3; for Group 4, Loan Group 4; and
for Group 5,
Loan Group 5.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a reduction in the amount
of interest
collectible thereon for the most recently ended calendar month as a
result of
the application of the Relief Act or comparable state legislation,
the amount,
if any, by which (i) interest collectible on such Mortgage Loan for
the most
recently ended calendar month is less than (ii) interest accrued
pursuant to the
terms of the Mortgage Note on the same principal amount and for the
same period
as the interest collectible on such Mortgage Loan for the most
recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is defined in Section
2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and regulations promulgated thereunder, as the foregoing may be in
effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: With respect to (a) each WF Servicer, shall
have
the meaning given to the term "Remittance Date" in the applicable
Servicing
Agreement and (b) each WMMSC Servicer or the WMMSC Master Servicer
and any
Distribution Date, anytime prior to 2:00 p.m. Eastern time on the
Business Day
immediately preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a Servicer
or
the WMMSC Master Servicer, received in respect of any REO Property
(including,
without limitation, proceeds from the rental of the related
Mortgaged Property)
which are received prior to the final liquidation of such Mortgaged
Property.
REO Property: A Mortgaged Property acquired by a Servicer
servicing
the related Mortgage Loan or the WMMSC Master Servicer, as
applicable, on behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in
connection
with a defaulted Mortgage Loan.
Representing Party: Solely with respect to the WMMSC Master
Serviced
Loans, Washington Mutual Mortgage Securities Corp. or its successor
in interest.
Request for Release: The Request for Release submitted by a
Servicer
or the WMMSC Master Servicer, as applicable, to the Trustee or the
Custodian on
behalf of the Trustee, as the case may be, substantially in the
form of Exhibit
E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be maintained from time to
time under this
Agreement in respect of such Mortgage Loan.
Residual Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee or
the
Securities Administrator, any officer of the Corporate Trust
Department of the
Trustee or the Securities Administrator, as applicable, including
any Senior
Vice President, any Vice President, any Assistant Vice President,
any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of
the Trustee or Securities Administrator, as applicable, customarily
performing
functions similar to those performed by any of the above designated
officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., or any successor thereto.
Securities Administrator: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities administrator
is appointed
hereunder, such successor, as securities administrator.
Securities Administrator Fee: As to any Distribution Date and
Loan
Group, an amount equal to one-twelfth of the Securities
Administrator Fee Rate
multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans in
such Loan Group immediately following the Due Date in the month
preceding the
month in which such Distribution Date occurs.
Securities Administrator Fee Rate: With respect to each
Mortgage
Loan, 0.0100% per annum.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the
originator of
the Cooperative Loan in the related Cooperative Stock.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest, as seller of the
Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-R, Class
1-A-LR,
Class 2-A-1, Class 3-A-1, Class 4-A-1, Class 5-A-1 and Class 5-A-2
Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates
is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and
Loan
Group, the percentage, carried to 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 of such Loan Group for such Distribution
Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group during the seven years beginning on the first Distribution
Date, 100%. The
Senior Prepayment Percentage for any Loan Group and for any
Distribution Date
occurring on or after the seventh 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
(i) on any of
the foregoing Distribution Dates the Aggregate Senior Percentage
exceeds the
initial Aggregate Senior Percentage, in which case the Senior
Prepayment
Percentage for each Loan Group for such Distribution Date will once
again equal
100%, (ii) on any Distribution Date before the Distribution Date
occurring in
January 2008, the Aggregate Subordinate Percentage for such
Distribution Date is
greater than or equal to twice the initial Aggregate Subordinate
Percentage, in
which case the Senior Prepayment Percentage for each Loan Group for
such
Distribution Date will equal the Senior Percentage for such Loan
Group plus 50%
of the Subordinate Percentage for such Loan Group, or (iii) on any
Distribution
Date occurring on or after the Distribution Date in January 2008,
the Aggregate
Subordinate Percentage for such Distribution Date is greater than
or equal to
twice the initial Aggregate Subordinate Percentage, in which case
the Senior
Prepayment Percentage for each Loan Group for such Distribution
Date will equal
the Senior Percentage for such Loan Group. Notwithstanding the
foregoing, no
decrease in the share of the applicable Subordinate Percentage (for
calculating
the applicable Senior Prepayment Percentage for any Loan Group)
will occur and
the Senior Prepayment Percentage for all Loan Groups will be
calculated without
regard to clause (ii) or (iii) in the preceding sentence unless
both of the
Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior Percentage for such Loan
Group of the
amounts described in clauses (a) through (d) of the definition of
"Principal
Amount" for such Distribution Date and Loan Group and (ii) the
Senior Prepayment
Percentage for such Loan Group of the amounts described in clauses
(e) through
(g) of the definition of "Principal Amount" for such Distribution
Date and Loan
Group.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment Percentage for any Loan Group
applies, (i)
the outstanding principal balance of all Mortgage Loans (including,
for this
purpose, any Mortgage Loans in foreclosure, any REO Property and
any Mortgage
Loan for which the Mortgagor has filed for bankruptcy after the
Closing Date)
delinquent 60 days or more (averaged over the preceding six month
period), as a
percentage of the aggregate Class Certificate Balance of the
Subordinate
Certificates, is not equal to or greater than 50% or (ii)
cumulative Realized
Losses with respect to the Mortgage Loans as of the applicable
Distribution Date
do not exceed the percentages of the Original Subordinate
Certificate Balance
set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2005 through December 2007
20%
January 2008 through December 2012
30%
January 2013 through December 2013
35%
January 2014 through December 2014
40%
January 2015 through December 2015
45%
January 2016 and thereafter
50%
Servicer: Any WF Servicer or WMMSC Servicer.
Servicing Agreements: Either of the BANA Servicing Agreement or
the
Wells Fargo Servicing Agreement.
Servicing Contract: A contract (including the WMMSC Servicing
Guide
to the extent incorporated by reference therein) between the WMMSC
Master
Servicer and a mortgage loan servicing institution relating to the
servicing of
some or all of the WMMSC Master Serviced Loans for the benefit of
the
Certificateholders; provided, however, that such contract is
consistent with the
servicing provisions of this Agreement.
Servicer Custodial Accounts: With respect to (a) each WF
Servicer,
the separate accounts created and maintained by each of the WF
Servicers
pursuant to the applicable Servicing Agreement and (b) each WMMSC
Servicer, the
custodial account for principal and interest established and
maintained by each
WMMSC Servicer and caused by the WMMSC Master Servicer to be
established and
maintained pursuant to Section 3.08(a) with the corporate trust
department of
the Securities Administrator or another financial institution
approved by the
WMMSC Master Servicer such that the rights of the WMMSC Master
Servicer, the
Trust, the Trustee, the Securities Administrator and the
Certificateholders
thereto shall be fully protected against the claims of any
creditors of the
applicable WMMSC Servicer and of any creditors or depositors of the
institution
in which such account is maintained, (ii) within FDIC insured
accounts (or other
accounts with comparable insurance coverage acceptable to the
Rating Agencies)
created, maintained and monitored by a WMMSC Servicer or (iii) in a
separate
non-trust account without FDIC or other insurance in an Eligible
Institution. In
the event that a Servicer Custodial Account is established pursuant
to clause
(ii) of the preceding sentence, amounts held in such Servicer
Custodial Account
shall not exceed the level of deposit insurance coverage on such
account;
accordingly, more than one Servicer Custodial Account may be
established. Any
amount that is at any time not protected or insured in accordance
with clause
(b) of the first sentence of this definition of "Servicer Custodial
Account"
shall promptly be withdrawn from such Servicer Custodial Account
and be remitted
to the WMMSC Master Servicer Custodial Account.
Servicing Fee: With respect to (a) each WF Servicer, as defined
in
the applicable Servicing Agreement and (b) each WMMSC Servicer for
each WMMSC
Master Serviced Loan and Distribution Date, the amount of the fee
payable to the
WMMSC Servicer, which shall, for such Distribution Date, be equal
to one-twelfth
of the product of the WMMSC Servicing Fee Rate with respect to such
Mortgage
Loan and the Stated Principal Balance of such Mortgage Loan. Such
fee for a
WMMSC Servicer 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. Each WMMSC 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 3.18) of related
Monthly
Payments collected by a WMMSC Servicer, or as otherwise provided
under Section
3.18.
Servicing Fee Rate: Either of the WF Servicing Fee Rate or the
WMMSC
Servicing Fee Rate.
Servicing File: With respect to (a) each WF Master Serviced Loan,
as
defined in the applicable Servicing Agreement and (b) each WMMSC
Master Serviced
Loan, a file kept by the WMMSC Master Servicer and/or a WMMSC
Servicer in
connection with servicing of a WMMSC Master Serviced Loan.
Servicing Officer: With respect to each WF Servicer, as defined
in
the related Servicing Agreement.
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage Loan as of such date as
specified in
the amortization schedule at the time relating thereto (before any
adjustment to
such amortization schedule by reason of any moratorium or similar
waiver or
grace period) after giving effect to any previous partial Principal
Prepayments
(with respect to a WF Master Serviced Loan) or Curtailments (with
respect to a
WMMSC Master Serviced Loan) 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,
Class 2-LS
Interest, Class 3-LS Interest, Class 4-LS Interest and the Class
5-LS Interest,
equal to the ratio among the Group Subordinate Amount of Loan Group
1, the Group
Subordinate Amount of Loan Group 2, the Group Subordinate Amount
for Loan Group
3, the Group Subordinate Amount for Loan Group 4 and the Group
Subordinate
Amount of Loan Group 5.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such Loan Group for such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior Prepayment Percentage for such
Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i)
the
Subordinate Percentage for such Loan Group of the amounts described
in clauses
(a) through (d) of the definition of "Principal Amount" for such
Distribution
Date and Loan Group and (ii) the Subordinate Prepayment Percentage
for such Loan
Group of the amounts described in clauses (e) through (g) for such
Distribution
Date and Loan Group.
Substitute
Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such
substitution (i) have a
Stated Principal Balance, after deduction of the principal portion
of the
Monthly Payment due in the month of substitution, not in excess of
the Stated
Principal Balance of the Defective Mortgage Loan; (ii) have a Net
Mortgage
Interest Rate not less than, and not more than 2% greater than that
of the
Defective Mortgage Loan; (iii) be of the same type as the Defective
Mortgage
Loan; (iv) have a Loan-to-Value Ratio not higher than that of the
Defective
Mortgage Loan; (v) have a Gross Margin not less than that of the
Defective
Mortgage Loan; (vi) have a credit grade not lower in quality than
that of the
Defective Mortgage Loan; (vii) have a remaining term to maturity
not greater
than (and not more than one year less than) that of the Defective
Mortgage Loan;
(viii) have the same lien priority as the Defective Mortgage Loan;
(ix) have the
same Index as the Defective Mortgage Loan; and (x) (a) with respect
to each
substitution for a WF Master Serviced Loan, comply with each
Mortgage Loan
representation and warranty set forth in the Mortgage Loan Purchase
Agreement,
the Servicing Agreements and the Seller's Warranties and Servicing
Agreement,
dated as of November 1, 2004, by and between BANA and Wells Fargo
Bank, and (b)
with respect to each substitution for a WMMSC Master Serviced Loan,
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.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the
Treasury.
Trust: The trust created by this Agreement, which shall be named
the
"Banc of America Funding 2004-D Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to a portion of which six REMIC elections are to be
made, such
entire Trust Estate consisting of: (i) such Mortgage Loans as from
time to time
are subject to this Agreement, together with the Mortgage Files
relating
thereto, and together with all collections thereon and proceeds
thereof, (ii)
any REO Property, together with all collections thereon and
proceeds thereof,
(iii) the Trustee's rights with respect to the Mortgage Loans under
all
insurance policies required to be maintained pursuant to this
Agreement and any
proceeds thereof, (iv) the Depositor's rights under the Servicing
Agreements,
the Seller's Warranties and Servicing Agreement, dated as of
November 1, 2004,
by and between BANA and Wells Fargo Bank, and the Mortgage Loan
Purchase
Agreement (including any security interest created thereby) and (v)
the Servicer
Custodial Accounts, the Master Servicer Custodial Accounts and the
Certificate
Account and such assets that are deposited therein from time to
time and any
investments thereof, together with any and all income, proceeds and
payments
with respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed
hereunder, such
successor, as trustee.
Uncertificated Group REMIC Interest: A regular interest in the
one
of the Group REMICs, which is held as an asset of the Pooling REMIC
and is
entitled to monthly distributions as provided in Section 5.02(a)
hereof. Each of
the WF Group 4 Regular Interest, WF RCR Regular Interest, WMMSC
Group 1 Regular
Interest and WMMSC Group 4 Regular Interest are Uncertificated
Group REMIC
Interests.
Uncertificated Pooling REMIC Interest: A regular interest in
the
Pooling 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-L Interest, Class 1-LS Interest, Class 2-L Interest, Class 2-LS
Interest,
Class 3-L Interest, Class 3-LS Interest, Class 4-L Interest, Class
4-LS
Interest, Class 5-L Interest and Class 5-LS Interest are
Uncertificated Pooling
REMIC Interests.
Underwriting Guidelines: The published underwriting guidelines
of
the originator of any WMMSC Master Serviced Loan in effect at the
time such
WMMSC Master Serviced Loan was originated.
Uninsured Cause: Any cause of damage to a Mortgaged Property,
the
cost of the complete restoration of which is not fully reimbursable
under the
hazard insurance policies required to be maintained pursuant to
Section 3.12.
Unscheduled Principal Amount: As to any Distribution Date and
Loan
Group, the sum of the amounts described in clauses (e) through (g)
of the
definition of "Principal Amount."
Upper-Tier Certificate: Any one of the Senior Certificates
(other
than the Class 1-A-LR Certificate) and the Subordinate
Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Securities Administrator
pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Pooling REMIC
Interests and such
amounts as shall from time to time be deemed held in the Upper-Tier
Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership,
Treasury
Regulations are adopted that provide otherwise) created or
organized in or under
the laws of the United States, any state thereof or the District of
Columbia,
including an entity treated as a corporation or partnership for
federal income
tax purposes, an estate whose income is subject to United States
federal income
tax regardless of its source, or a trust if a court within the
United States is
able to exercise primary supervision over the administration of
such trust, and
one or more such U.S. Persons have the authority to control all
substantial
decisions of such trust (or, to the extent provided in applicable
Treasury
Regulations, certain trusts in existence on August 20, 1996 which
are eligible
to elect to be treated as U.S. Persons).
VA: The Department of Veterans Affairs, formerly known as the
Veterans Administration, or any successor thereto.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date
of
determination, (a) 1% of all Voting Rights shall be allocated to
the Holders of
the Residual Certificates and (b) the remaining Voting Rights shall
be allocated
among Holders of the remaining Classes of Certificates in
proportion to the
Certificate Balances of their respective Certificates on such
date.
Wells Fargo Bank: Wells Fargo Bank, N.A., in its capacity as
Servicer under the Wells Fargo Servicing Agreement.
Wells Fargo Sale Agreements: The Seller's Warranties and
Servicing
Agreement, dated as of November 1, 2004, by and between BANA and
Wells Fargo
Bank, N.A. and the Seller's Warranties and Servicing Agreement,
dated as of
December 1, 2004, by and between BANA and Wells Fargo Bank,
N.A.
Wells Fargo Servicing Agreement: The Seller's Warranties and
Servicing Agreement, dated as of December 1, 2004, by and between
BANA and Wells
Fargo Bank.
WF Compensating Interest: With respect to any Distribution Date
and
WF Servicer, an amount equal to the lesser of (a) the aggregate
Servicing Fee
payable to such WF Servicer for the WF Master Serviced Loans
serviced by such WF
Servicer as of the Due Date of the month preceding the month of
such
Distribution Date and (b) the aggregate of the Prepayment Interest
Shortfalls on
the WF Master Serviced Loans serviced by such WF Servicer resulting
from
Principal Prepayments on the WF Master Serviced Loans during the
related
Prepayment Period.
WF Escrow Account: As defined in Section 3.08(a).
WF Group 4 Call Right Mortgage Loans: The WF Master Serviced
Loans
in Loan Group 4.
WF Group 4 REMIC: As defined in the Preliminary Statement, the
assets of which consist of the WF Group 4 Call Right Mortgage
Loans, such
amounts as shall be held in Sub-Account WF-4, the Insurance
Policies, if any,
relating to a WF Group 4 Call Right Mortgage Loan and property
which secured a
WF Group 4 Call Right Mortgage Loan and which has been acquired by
foreclosure
or deed in lieu of foreclosure.
WF Master Serviced Loan: Any Mortgage Loan that is master
serviced
by the WF Master Servicer, as indicated in the Mortgage Loan
Schedule.
WF Master Serviced Loan Reimbursement Amount: As defined in
Section
2.02.
WF Master Servicer: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor master servicer is
appointed
hereunder, such successor, as master servicer.
WF Master Servicer Custodial Account: The account or accounts
created and maintained by the WF Master Servicer pursuant to
Section 3.09 which
must be an Eligible Account.
WF Master Servicer Custodial Account Reinvestment Income: For
each
Distribution Date, all income and gains net of any losses realized
since the
preceding Distribution Date from Permitted Investments of funds in
the WF Master
Servicer Custodial Account.
WF RCR REMIC: As defined in the Preliminary Statement, the assets
of
which consist of the Group 2, Group 3 and Group 5 Mortgage Loans,
such amounts
as shall be held in Sub-Account WF-RCR, the insurance policies, if
any, relating
to a Group 2, Group 3 or Group 5 Mortgage Loan and property which
secured a
Group 2, Group 3 or Group 5 Mortgage Loan and which has been
acquired by
foreclosure or deed in lieu of foreclosure.
WF Remaining Call Right Mortgage Loans: The Group 2, Group 3
and
Group 5 Mortgage Loans.
WF Servicer: Either of BANA or Wells Fargo Bank, each in their
capacity as servicer of the WF Mortgage Loans, or any successor
servicer
appointed as herein provided.
WF Servicer Periodic Advance: With respect to each WF Servicer,
shall have the meaning given to term "Monthly Advance" in the
applicable
Servicing Agreement.
WF Servicer Servicing Advance: With respect to each WF
Servicer,
shall have the meaning given to the term "Servicing Advances" in
the applicable
Servicing Agreement.
WF Servicing Fee Rate: With respect to each WF Master Serviced
Loan,
as defined in the applicable Servicing Agreement.
Withdrawal Date: Any day during the period commencing on the
18th
day of the month of the related Distribution Date (or if such day
is not a
Business Day, the immediately preceding Business Day) and ending on
the last
Business Day prior to the 21st day of the month of such
Distribution Date. The
"related Distribution Date" for any Withdrawal Date is the
Distribution Date
immediately following the related Withdrawal Date.
WMMSC Advance: The payment required to be made by the WMMSC
Master
Servicer with respect to any Distribution Date pursuant to Section
3.21 or, as
applicable, by a WMMSC Servicer pursuant to a Servicing
Contract.
WMMSC Compensating Interest: With respect to any Distribution
Date
and the WMMSC Master Servicer, an amount equal to the least of (a)
the sum of
(i) the aggregate WMMSC Master Servicing Fee payable with respect
to such
Distribution Date relating to the WMMSC Master Serviced Loans, (ii)
the
aggregate Payoff Earnings with respect to such Distribution Date
and (iii) the
aggregate Payoff Interest with respect to such Distribution Date,
(b) the
aggregate Prepayment Interest Shortfall resulting from Payoffs on
the WMMSC
Master Serviced Loans for such Distribution Date and (c)
one-twelfth of 0.125%
of the Stated Principal Balance of the WMMSC Master Serviced
Loans.
WMMSC Escrow Account: The WMMSC Escrow Account established and
maintained by each WMMSC Servicer and caused by the WMMSC Master
Servicer to be
established and maintained pursuant to Section 3.08(b) with the
corporate trust
department of the Securities Administrator or another financial
institution
approved by the WMMSC Master Servicer such that the rights of the
WMMSC Master
Servicer, the Trust, the Trustee, the Securities Administrator and
the
Certificateholders thereto shall be fully protected against the
claims of any
creditors of the applicable WMMSC Servicer and of any creditors or
depositors of
the institution in which such account is maintained, (b) within
FDIC insured
accounts (or other accounts with comparable insurance coverage
acceptable to the
Rating Agencies) created, maintained and monitored by a WMMSC
Servicer or (c) in
a separate non-trust account without FDIC or other insurance in an
Eligible
Institution. In the event that a WMMSC Escrow Account is
established pursuant to
clause (b) of the preceding sentence, amounts held in such WMMSC
Escrow Account
shall not exceed the level of deposit insurance coverage on such
account;
accordingly, more than one WMMSC Escrow Account may be established.
Any amount
that is at any time not protected or insured in accordance with the
first
sentence of this definition of "WMMSC Escrow Account" shall
promptly be
withdrawn from such WMMSC Escrow Account and be remitted to the
WMMSC Master
Servicer Custodial Account.
WMMSC Group 1 REMIC: As defined in the Preliminary Statement,
the
assets of which consist of the Group 1 Mortgage Loans, such amounts
as shall be
held in Sub-Account WMMSC-1, the Insurance Policies, if any,
relating to a Group
1 Mortgage Loan and property which secured a Group 1 Mortgage Loan
and which has
been acquired by foreclosure or deed in lieu of foreclosure.
WMMSC Group 4 Call Right Mortgage Loans: The WMMSC Master
Serviced
Loans in Loan Group 4.
WMMSC Group 4 REMIC: As defined in the Preliminary Statement,
the
assets of which consist of the WMMSC Group 4 Call Right Mortgage
Loans, such
amounts as shall be held in Sub-Account WMMSC-4, the Insurance
Policies, if any,
relating to a WMMSC Group 4 Call Right Mortgage Loan and property
which secured
a WMMSC Group 4 Call Right Mortgage Loan and which has been
acquired by
foreclosure or deed in lieu of foreclosure.
WMMSC Master Serviced Loan: Any Mortgage Loan that is master
serviced by the WMMSC Master Servicer, as indicated in the Mortgage
Loan
Schedule.
WMMSC Master Serviced Loan Reimbursement Amount: As defined in
Section 2.04.
WMMSC Master Servicer: Washington Mutual Mortgage Securities
Corp.,
and its successors-in-interest and, if a successor master servicer
is appointed
hereunder, such successor, as master servicer.
WMMSC Master Servicer Custodial Account: The commingled account
(which shall be commingled only with investment accounts related to
a series of
pass-through certificates with a class of certificates which has a
rating equal
to the highest of ratings of the Certificates) maintained by the
WMMSC Master
Servicer in the trust department of the Investment Depository
pursuant to
Section 3.09 and which bears a designation acceptable to the Rating
Agencies.
WMMSC Master Servicer Custodial Account Reinvestment Income:
For
each Distribution Date, all income and gains net of any losses
realized since
the preceding Distribution Date from Permitted Investments of funds
in the WMMSC
Master Servicer Custodial Account.
WMMSC Master Servicing Fee: With respect to each WMMSC Master
Serviced Loan and Distribution Date, the amount of the fee payable
to the WMMSC
Master Servicer from the Certificate Account, WMMSC Master Servicer
Custodial
Account or Servicer Custodial Account, which shall, for such
Distribution Date,
be equal to one-twelfth of the product of the WMMSC Master
Servicing Fee Rate
with respect to such WMMSC Master Serviced Loan and the Stated
Principal Balance
of such WMMSC 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 WMMSC Master Serviced Loan is
computed. The WMMSC
Master Servicer's right to receive the WMMSC Master 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 WMMSC
Master Servicer, or as otherwise provided under Section 3.11.
WMMSC Master Servicing Fee Rate: With respect to each WMMSC
Master
Serviced Loan, 0.05% per annum.
WMMSC Servicer: Any mortgage loan servicing institution to which
the
WMMSC Master Servicer has delegated servicing duties with respect
to any WMMSC
Master Serviced Loan under a Servicing Contract. With respect to
any Mortgage
Loan for which the WMMSC Master Servicer has not entered into a
Servicing
Contract or as to which the related Servicing Contract has
terminated (other
than pursuant to Section 8.01), the WMMSC Master Servicer shall be
deemed to be
the Servicer of such WMMSC Master Serviced Loan for all purposes of
this
Agreement.
WMMSC Servicing Fee Rate: With respect to each WMMSC Master
Serviced
Loan, 0.375% per annum.
WMMSC Servicing Guide: The published Washington Mutual Servicer
Guide, as in effect from time to time.
Section 1.02 Interest Calculations. All calculations of
interest
will be made on a 360-day year consisting of twelve 30-day months.
All dollar
amounts calculated hereunder shall be rounded to the nearest penny
with one-half
of one penny being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells,
transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf
of the Trust
for the benefit of the Certificateholders, without recourse, all
the right,
title and interest of the Depositor in and to the Mortgage Loans,
including all
interest and principal received on or with respect to the Mortgage
Loans (other
than payments of principal and interest due and payable on the
Mortgage Loans on
or before the Cut-off Date), the Depositor's rights under the
Mortgage Loan
Purchase Agreement, including the rights of the Depositor as
assignee of the
Seller with respect to the Seller's rights under (i) the Seller's
Warranties and
Servicing Agreement, dated as of November 1, 2004, by and between
BANA and Wells
Fargo Bank and (ii) the Seller's Warranties and Servicing
Agreement, dated as of
December 1, 2004, by and between BANA and Wells Fargo Bank, and the
Depositor's
rights under the BANA Servicing Agreement. The foregoing sale,
transfer,
assignment and set over does not and is not intended to result in a
creation of
an assumption by the Trustee of any obligation of the Depositor or
any other
Person in connection with the Mortgage Loans or any agreement or
instrument
relating thereto, except as specifically set forth herein. It is
agreed and
understood by the parties hereto that it is not intended that any
mortgage loan
be included in the Trust that is a "High-Cost Home Loan" as defined
in 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
has delivered or caused to be delivered to the Trustee and a
Custodian on behalf
of the Trustee, for the benefit of the Certificateholders, the
following
documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wachovia Bank,
National
Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-D,
without
recourse,"
with all necessary intervening endorsements showing a complete
chain of
endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and
interest of
the party
so endorsing, as noteholder or assignee thereof, in and to that
Mortgage
Note) and, in the case of any Mortgage Loan originated in the
State of
New York documented by a NYCEMA, the NYCEMA, the new Mortgage
Note, if
applicable, the consolidated Mortgage Note and the consolidated
Mortgage;
(ii) except as provided below and other than with respect to
the
Mortgage
Loans purchased by the Seller under the Wells Fargo Sale
Agreements, 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 "Wachovia Bank, National Association,
as trustee
for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-D" (which may be included in
a
blanket
assignment or assignments), together with, except as provided
below and
other than with respect to the Mortgage Loans purchased by the
Seller
under the Wells Fargo Sale Agreements, 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 WMMSC Master Servicer shall, in
the
case of
the WMMSC Master Serviced Loans, or, in the case of the WF
Master
Serviced
Loans, the WF Master Servicer shall enforce the obligations of
the
applicable WF Servicer to, take all actions as are necessary to
cause
the Trust
to be shown as the owner of the related Mortgage Loan on the
records of
MERS for purposes of the system of recording transfers of
beneficial
ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by
the
Seller
under the Wells Fargo Sale Agreements, any of (A) the original
or
duplicate
original mortgagee title insurance policy and all riders
thereto;
(B) a title search showing no lien (other than standard
exceptions) on the Mortgaged Property senior to the lien of the
Mortgage
or (C) an
opinion of counsel of the type customarily rendered in the
applicable
jurisdiction in lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording
indicated thereon, or, if the lease is in the process of being
recorded,
a photocopy of the lease, certified by an officer of the
respective
prior owner of such Mortgage Loan or by the applicable title
insurance
company, closing/settlement/escrow agent or company or closing
attorney
to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage
or
equivalent
document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock (other
than
with
respect to any Mortgage Loan secured by Cooperative Stock
purchased
by the
Seller under the Wells Fargo Sale Agreements), the originals of
the
following
documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D)
The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed
UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item
(iii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the Trustee or the Custodian on behalf
of the
Trustee, as the case may be, a copy of such Assignment of Mortgage
in blank
rather than in the name of the Trustee and has caused the
applicable WF Servicer
(in the case of the WF Master Serviced Loans) or the WMMSC Master
Servicer (in
the case of the WMMSC Master Serviced Loans) to retain the
completed Assignment
of Mortgage for recording as described below, unless such Mortgage
has been
recorded in the name of MERS or its designee. In addition, if the
Depositor is
unable to deliver or cause the delivery of any original Mortgage
Note due to the
loss of such original Mortgage Note, the Depositor may deliver a
copy of such
Mortgage Note, together with a lost note affidavit, and shall
thereby be deemed
to have satisfied the document delivery requirements of this
Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C)
all
assumption, modification, consolidation or extension agreements, if
any, or (D)
the lender's title policy, if any (together with all riders
thereto), satisfying
the requirements of clause (ii), (iii), (iv) or (v) above,
respectively,
concurrently with the execution and delivery hereof because such
document or
documents have not been returned from the applicable public
recording office in
the case of clause (ii), (iii) or (iv) above, or because the title
policy, if
any, has not been delivered to any of the related WF Servicer, the
WMMSC Master
Servicer, the Seller or the Depositor, as applicable, 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,
as the case may be, in the case of clause (ii), (iii) or (iv)
above, such
Mortgage, such interim assignment or such assumption,
modification,
consolidation or extension agreement, as the case may be, with
evidence of
recording indicated thereon upon receipt thereof from the public
recording
office, but in no event shall any such delivery of any such
documents or
instruments be made later than one year following the Closing Date,
unless, in
the case of clause (ii), (iii) or (iv) above, there has been a
continuing delay
at the applicable recording office or, in the case of clause (v),
there has been
a continuing delay at the applicable insurer and the Depositor has
delivered the
Officer's Certificate to such effect to the Trustee. The Depositor
shall forward
or cause to be forwarded to the Trustee or the Custodian, on behalf
of the
Trustee, as the case may be, (1) from time to time additional
original documents
evidencing an assumption or modification of a Mortgage Loan and (2)
any other
documents required to be delivered by the Depositor, the applicable
WF Servicer
(in the case of the WF Master Serviced Loans) or the WMMSC Master
Servicer (in
the case of the WMMSC Master Serviced Loans) to the Trustee or the
Custodian on
the Trustee's behalf, as the case may be. In the event that the
original
Mortgage is not delivered and in connection with the payment in
full of the
related Mortgage Loan the public recording office requires the
presentation of a
"lost instruments affidavit and indemnity" or any equivalent
document, because
only a copy of the Mortgage can be delivered with the instrument of
satisfaction
or reconveyance, the Depositor (in the case of the WF Master
Serviced Loans) or
the WMMSC Master Servicer (in the case of the WMMSC Master Serviced
Loans) shall
prepare, execute and deliver or cause to be prepared, executed and
delivered, on
behalf of the Trust, such a document to the public recording
office.
Upon discovery by the Depositor or notice from the WF Servicer,
WF
Master Servicer or Securities Administrator that a Document
Transfer Event has
occurred, the Depositor shall, with respect to Mortgage Loans
purchased by the
Seller under the Wells Fargo Sale Agreements, deliver or cause to
be delivered
to the Trustee within 60 days copies (which may be in electronic
form mutually
agreed upon by the Depositor and the Trustee) of the following
additional
documents or instruments to the Mortgage File with respect to each
such Mortgage
Loan; provided, however, that originals of such documents or
instruments shall
be delivered to the Trustee if originals are required under the law
in which the
related Mortgaged Property is located in order to exercise all
remedies
available to the Trust under applicable law following default by
the related
Mortgagor:
(1) other than if the related Mortgage has been recorded in the
name
of MERS or its designee, originals of all interim recorded
assignments of such
mortgage or a copy of such interim assignments certified by the
Depositor as
being a true and complete copy of the original recorded intervening
assignments
of Mortgage (each such assignment, when duly and validly completed,
to be in
recordable form and sufficient to effect the assignment of and
transfer to the
assignee thereof, under the Mortgage to which the assignment
relates);
(2) the original or a certified copy of the lender's title
insurance
policy;
(3) the original Mortgage with evidence of recording thereon,
and
the original recorded power of attorney, if the Mortgage was
executed pursuant
to a power of attorney, with evidence of recording thereon or, if
such Mortgage
or power of attorney has been submitted for recording but has not
been returned
from the applicable public recording office, has been lost or is
not otherwise
available, a copy of such Mortgage or power of attorney, as the
case may be,
certified to be a true and complete copy of the original submitted
for
recording; and
(4) for each Mortgage Loan secured by Cooperative Stock, the
originals of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
With respect to each WF Master Serviced Loan, as promptly as
practicable subsequent to such transfer and assignment, the WF
Master Servicer
shall (except for any Mortgage which has been recorded in the name
of MERS or
its designee) enforce the obligations of the related WF Servicer
pursuant to the
related Servicing Agreement to (I) cause each Assignment of
Mortgage to be in
proper form for recording in the appropriate public office for real
property
records within the time period required in the applicable Servicing
Agreement
and (II) at the Depositor's expense, cause to be delivered for
recording in the
appropriate public office for real property records the Assignments
of the
Mortgages to the Trustee, except that, with respect to any
Assignment of a
Mortgage as to which the related WF Servicer has not received the
information
required to prepare such assignment in recordable form, such WF
Servicer's
obligation to do so and to deliver the same for such recording
shall be as soon
as practicable after receipt of such information and in accordance
with the
applicable Servicing Agreement.
With respect to each WMMSC Master Serviced Loan, as promptly as
practicable subsequent to such transfer and assignment and in any
event, within
30 days thereafter, the WMMSC Master 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 WMMSC Master Servicer has not received the
information
required to prepare such assignment in recordable form, the WMMSC
Master
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.
No recording of an Assignment of Mortgage will be required in a
state if either (i) the Depositor furnishes to the Trustee and the
Securities
Administrator an unqualified Opinion of Counsel reasonably
acceptable to the
Trustee and the Securities Administrator to the effect that
recordation of such
assignment is not necessary under applicable state law to preserve
the Trustee's
interest in the related Mortgage Loan against the claim of any
subsequent
transferee of such Mortgage Loan or any successor to, or creditor
of, the
Depositor or the originator of such Mortgage Loan or (ii) the
recordation of an
Assignment of Mortgage in such state is not required by either
Rating Agency in
order to obtain the initial ratings on the Certificates on the
Closing Date. As
set forth on Exhibit L attached hereto is a list of all states
where recordation
is required by either Rating Agency to obtain the initial ratings
of the
Certificates. The Securities Administrator, the Trustee and the
Custodian may
rely and shall be protected in relying upon the information
contained in such
Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of delivering the above
documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause
the applicable
WF Servicer to remit to the WF Master Servicer for deposit in the
WF Master
Servicer Custodial Account (with respect to each WF Master Serviced
Loan) or the
WMMSC Master Servicer to deposit in the WMMSC Master Servicer
Custodial Account
(with respect to each WMMSC Master Serviced Loan) the portion of
such payment
that is required to be deposited in the such account pursuant to
Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the
Mortgage
Loans. Subject to the provisions of the following paragraph, the
Trustee
declares that it, or the Custodian as its agent, will hold the
documents
referred to in Section 2.01 and the other documents delivered to it
or the
Custodian as its agent, as the case may be, constituting the
Mortgage Files, and
that it will hold such other assets as are included in the Trust
Estate
delivered to it, in trust for the exclusive use and benefit of all
present and
future Certificateholders. Upon execution and delivery of this
document, the
Trustee shall deliver and cause the Custodian to deliver to the
Depositor and
the Master Servicers 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, each such Person has received
the original
Mortgage Note relating to each of the Mortgage Loans for which such
Person is
acting as custodian listed on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, and cause the Custodian, on behalf of the
Trustee, to
review, the Mortgage Files in such Person's possession, and shall
deliver, no
later than 30 days after completion of such review, to the
Depositor and the
Master Servicers a certification in the form of Exhibit N hereto
(the "Final
Certification") to the effect that, as to each Mortgage Loan for
which it is
acting as custodian listed in the Mortgage Loan Schedule, except as
may be
specified in a list of exceptions attached to such Final
Certification, such
Mortgage File contains all of the items required to be delivered
pursuant to
Section 2.01(b). In performing any such review, the Trustee and the
Custodian
may conclusively rely on the purported genuineness of any such
document and any
signature thereon.
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a Mortgage File which does not
meet the
requirements of Section 2.01 or is omitted from such Mortgage File,
the Trustee
shall promptly notify or shall cause the Custodian promptly to
notify, as the
case may be (and in no event more than 30 days after completion of
the review),
the Master Servicer and the Depositor of such Mortgage Loan. 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 Trust at
the Purchase Price for such Mortgage Loan; provided, however, that
in no event
shall such a substitution occur more than two years from the
Closing Date;
provided, further, that such substitution or repurchase 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.
If during the period of such review by the Trustee of any WF
Master
Serviced Loan, the Depositor, the WF Master Servicer, the
Securities
Administrator or the Trustee discovers a breach by a WF Servicer or
the Seller
of any representation, warranty or covenant under the Wells Fargo
Sale
Agreements, the Servicing Agreements or the Mortgage Loan Purchase
Agreement in
respect of any WF Master Serviced Loan and such breach materially
adversely
affects the interest of the Certificateholders in the related WF
Master Serviced
Loan (provided that any such breach that causes the WF Master
Serviced Loan not
to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the
Code shall be deemed to materially and adversely affect the
interests of the
Certificateholders), then such party shall promptly so notify the
WF Master
Servicer, the Seller, such WF Servicer and the Depositor of such
breach and
request that the applicable WF Servicer or the Seller, as the case
may be, cure
such breach within 90 days of its discovery or its receipt of
notice of any such
breach. If the Seller or the applicable WF Servicer, as applicable,
does not
cure such breach in all material respects during such period, the
Trustee shall
enforce the applicable WF Servicer's or Seller's obligation, as the
case may be,
under the applicable Servicing Agreement, the Wells Fargo Sale
Agreements or the
Mortgage Loan Purchase Agreement, as applicable, and cause the
applicable WF
Servicer or Seller, as applicable, to either (a) solely in the case
of the
Seller, substitute for the related WF Master Serviced 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 WF Master Serviced
Loan from the
Trust at the Purchase Price for such Mortgage Loan; provided,
however, that in
no event shall such a substitution occur more than two years from
the Closing
Date; provided, further, that such substitution or repurchase must
occur within
90 days of when such defect was discovered if such defect will
cause the
Mortgage Loan not to be a "qualified mortgage" within the meaning
of Section
860G(a)(3) of the Code.
It is understood that the scope of the Trustee and the
Custodian's
review of the Mortgage Files is limited solely to confirming that
the documents
listed in Section 2.01 have been received and further confirming
that any and
all documents delivered pursuant to Section 2.01 appear on their
face to have
been executed and relate to the applicable Mortgage Loans
identified in the
related Mortgage Loan Schedule based solely upon the review of
items (i) and
(xi) in the definition of Mortgage Loan Schedule. Neither the
Trustee nor the
Custodian shall have any responsibility for determining whether any
document is
valid and binding, whether the text of any assignment or
endorsement is in
proper or recordable form, whether any document has been recorded
in accordance
with the requirements of any applicable jurisdiction, or whether a
blanket
assignment is permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation
or
warranty of a related WF Servicer or the Seller, the Trustee shall
enforce the
rights of the Trust under the Wells Fargo Sale Agreements, the
Servicing
Agreements and the Mortgage Loan Purchase Agreement for the benefit
of the
Certificateholders. In the event of a breach of the representations
or
warranties with respect to the WF Master Serviced Loans set forth
in a Servicing
Agreement or a Wells Fargo Sale Agreement, the Trustee shall
enforce the right
of the Trust to be indemnified for such breach of representation or
warranty. In
addition, if a breach of a representation with respect to a WF
Master Serviced
Loan set forth in clauses (k) or (o) of paragraph 3 or clauses (f)
or (oo) of
paragraph 4 of the Mortgage Loan Purchase Agreement occurs as a
result of a
violation of an applicable predatory or abusive lending law, the
Trustee shall
enforce the right of the Trust to reimbursement by the Seller for
all costs or
damages incurred by the Trust as a result of the violation of such
law (such
amount, the "WF Master Serviced Loan Reimbursement Amount"), but in
the case of
a breach of a representation set forth in clauses (k) or (o) of
paragraph 3 of
the Mortgage Loan Purchase Agreement, only to the extent the
applicable WF
Servicer does not so reimburse the Trust. It is understood and
agreed that,
except for any indemnification provided in the Servicing Agreements
and the
Wells Fargo Sale Agreements and the payment of any WF Master
Serviced Loan
Reimbursement Amount, the obligation of a WF Servicer or the Seller
to cure or
to repurchase (or in the case of the Seller, to substitute for) any
WF Master
Serviced Loan as to which a document is missing, a material defect
in a
constituent document exists or as to which such a breach has
occurred and is
continuing shall constitute the sole remedy against a WF Servicer
or the Seller
in respect of such omission, defect or breach available to the
Trustee on behalf
of the Certificateholders.
With respect to the representations and warranties relating to
the
WF Master Serviced Loans set forth in the Mortgage Loan Purchase
Agreement that
are made to the best of the Seller's knowledge or as to which the
Seller had no
knowledge, if it is discovered by the Depositor, the WF Master
Servicer or the
Trustee that the substance of such representation or warranty is
inaccurate and
such inaccuracy materially and adversely affects the interest of
the
Certificateholders in the related WF Master Serviced Loan then,
notwithstanding
the Seller's lack of knowledge with respect to the substance of
such
representation or warranty being inaccurate as the time the
representation or
warranty was made, such inaccuracy shall be deemed a breach of the
applicable
representation or warranty.
It is understood and agreed that the representations and
warranties
relating to the WF Master Serviced Loans set forth in the Mortgage
Loan Purchase
Agreement shall survive delivery of the Mortgage Files to the
Trustee and shall
inure to the benefit of the Certificateholders notwithstanding any
restrictive
or qualified endorsement or assignment. It is understood and agreed
that the
obligations of the Seller set forth in this Section 2.02 to cure,
substitute for
or repurchase a WF Master Serviced Loan pursuant to the Mortgage
Loan Purchase
Agreement constitute the sole remedies available to the
Certificateholders and
to the Trustee on their behalf respecting a breach of the
representations and
warranties contained in the Mortgage Loan Purchase Agreement.
The representations and warranties of each WF Servicer with
respect
to the applicable WF Master Serviced Loans in the related Servicing
Agreement or
the Wells Fargo Sale Agreements, which have been assigned to the
Trustee
hereunder, were made as of the date specified in such Servicing
Agreement or
Wells Fargo Sale Agreement, as the case may be. To the extent that
any fact,
condition or event with respect to a WF Master Serviced Loan
constitutes a
breach of both (i) a representation or warranty of a WF Servicer
under the
related Servicing Agreement or Wells Fargo Sale Agreement and (ii)
a
representation or warranty of the Seller under the Mortgage Loan
Purchase
Agreement, the only right or remedy of the Trustee or of any
Certificateholder
shall be the Trustee's right to enforce the obligations of the
applicable WF
Servicer under any applicable representation or warranty made by
it. The Trustee
acknowledges that the Seller shall have no obligation or liability
with respect
to any breach of a representation or warranty made by it with
respect to the
Mortgage Loans if the fact, condition or event constituting such
breach also
constitutes a breach of a representation or warranty made by the
applicable WF
Servicer in the applicable Servicing Agreement or Wells Fargo Sale
Agreement,
without regard to whether such WF Servicer fulfills its contractual
obligations
in respect of such representation or warranty. The Trustee further
acknowledges
that the Depositor shall have no obligation or liability with
respect to any
breach of any representation or warranty with respect to the WF
Master Serviced
Loans (except as set forth in Section 2.04(b)) under any
circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee (or a Custodian on behalf of 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 related Master Servicer shall amend the Mortgage Loan
Schedule
for the benefit of the Certificateholders to reflect the removal of
each
Mortgage Loan that has become a Defective Mortgage Loan and the
substitution of
the Substitute Mortgage Loan or Loans and the related Master
Servicer shall
deliver the amended Mortgage Loan Schedule to the Securities
Administrator, the
Trustee and the Custodian. Upon such substitution of a WF Master
Serviced Loan
by the Seller, each Substitute Mortgage Loan shall be subject to
the terms of
this Agreement in all respects, and the Seller shall be deemed to
have made to
the Trustee with respect to such Substitute Mortgage Loan, as of
the date of
substitution, the representations and warranties made pursuant to
paragraph 4 of
the Mortgage Loan Purchase Agreement. Upon such substitution of a
WMMSC Master
Serviced Loan by the Representing Party, each Substitute Mortgage
Loan shall be
subject to the terms of this Agreement in all respects, and the
Representing
Party 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(a) and (b) hereof.
Upon any such
substitution and the deposit to applicable Master Servicer
Custodial Account of
any required Substitution Adjustment Amount (as described in the
next paragraph)
and receipt by the Trustee of a Request for Release, the Trustee
shall release,
or shall direct the Custodian to release, the Mortgage File
relating to such
Defective Mortgage Loan to the Seller or the Representing Party, as
applicable,
and shall execute and deliver at the Seller's or the Representing
Party's
direction such instruments of transfer or assignment prepared by
the Seller or
the Representing Party, as applicable, in each case without
recourse, as shall
be necessary to vest title in the Seller or Representing Party, or
its designee,
to the Trustee's interest in any Defective Mortgage Loan
substituted for
pursuant to this Section 2.02.
For any month in which the Seller or Representing Party
substitutes
one or more Substitute Mortgage Loans for one or more Defective
Mortgage Loans,
the amount (if any) by which the aggregate principal balance of all
such
Substitute Mortgage Loans substituted by the Seller or Representing
Party, as
the case may be, in a Loan Group as of the date of substitution is
less than the
aggregate Stated Principal Balance of all such Defective Mortgage
Loans in a
Loan Group substituted by the Seller or Representing Party (after
application of
the principal portion of the Monthly Payments due in the month of
substitution)
(the "Substitution Adjustment Amount" for such Loan Group) plus an
amount equal
to the aggregate of any unreimbursed Advances with respect to such
Defective
Mortgage Loans shall be remitted by the Seller or the Representing
Party to the
applicable Master Servicer for deposit to the related Master
Servicer Custodial
Account on or before the 18th of the month succeeding the calendar
month during
which the related Mortgage Loan is required to be purchased or
replaced
hereunder.
The Trustee shall retain or shall cause the Custodian to retain,
as
applicable, possession and custody of each Mortgage File in
accordance with and
subject to the terms and conditions set forth herein. The related
Master
Servicer shall cause to be promptly delivered to the Trustee or the
Custodian on
behalf of the Trustee, as the case may be, upon the execution or,
in the case of
documents requiring recording, receipt thereof, the originals of
such other
documents or instruments constituting the Mortgage File as come
into the related
Master Servicer's possession from time to time.
The Trustee or the Custodian, on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect, review or examine any
such
documents, instruments, certificates or other papers to determine
that they are
genuine, enforceable, or appropriate for the represented purpose or
that they
are other than what they purport to be on their face or (ii) to
determine
whether any Mortgage File should include any of the documents
specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection
with making the
certifications required hereunder, to the extent a title search or
opinion of
counsel 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.
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicers.
(a) The WF Master Servicer hereby makes the following
representations and warranties to the Depositor, the WMMSC Master
Servicer, the
Securities Administrator and the Trustee, as of the Closing
Date:
(i)
The WF Master Servicer is a national banking association duly
chartered
and validly existing in good standing under the laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted and is licensed, qualified and in good
standing
in each of the states where a Mortgaged Property securing a WF
Master
Serviced Loan is located if the laws of such state require
licensing
or qualification in order to conduct business of the type
conducted
by the WF Master Servicer. The WF Master Servicer has power and
authority
to execute and deliver this Agreement and to perform in
accordance
herewith; the execution, delivery and performance of this
Agreement
(including all instruments of transfer to be delivered pursuant
to this
Agreement) by the WF Master Servicer and the consummation of
the
transactions contemplated hereby have been duly and validly
authorized.
This
Agreement, assuming due authorization, execution and delivery by
the
other
parties hereto, evidences the valid, binding and enforceable
obligation
of the WF Master Servicer, subject to applicable law except as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation,
receivership, moratorium, reorganization or other similar laws
affecting
the
enforcement of the rights of creditors and (B) general principles
of
equity,
whether enforcement is sought in a proceeding in equity or at
law.
All
requisite corporate action has been taken by the WF Master Servicer
to
make this
Agreement valid and binding upon the WF Master Servicer in
accordance
with its terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the WF Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or
will,
prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the WF Master
Servicer
and will
not result in the breach of any term or provision of the
charter
or by-laws
of the WF Master Servicer or result in the breach of any term
or
provision of, or conflict with or constitute a default under or
result
in the
acceleration of any obligation under, any agreement, indenture
or
loan or
credit agreement or other instrument to which the WF Master
Servicer
or its property is subject, or result in the violation of any
law, rule,
regulation, order, judgment or decree to which the WF Master
Servicer
or its property is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the WF Master Servicer, threatened against
the WF
Master Servicer which, either individually or in the aggregate,
would
result in any material adverse change in the business,
operations,
financial
condition, properties or assets of the WF Master Servicer, or
in
any
material impairment of the right or ability of the WF Master
Servicer
to carry
on its business substantially as now conducted or which would
draw into
question the validity of this Agreement or the WF Master
Serviced
Loans or of any action taken or to be taken in connection with
the
obligations of the WF Master Servicer contemplated herein, or
which
would
materially impair the ability of the WF Master Servicer to
perform
under the
terms of this Agreement.
(b) The WMMSC Master Servicer hereby makes the following
representations and warranties to the Depositor, the WF Master
Servicer, the
Securities Administrator and the Trustee, as of the Closing
Date:
(i) The WMMSC Master Servicer is a corporation duly organized,
validly existing, and
in good standing under the laws of the state of
Delaware
and has all licenses necessary to carry on its business as now
being
conducted and is licensed, qualified and in good standing in each
of
the states
where a Mortgaged Property securing a WMMSC Master Serviced
Loan is
located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
the
WMMSC
Master Servicer. The WMMSC Master Servicer has power and
authority
to execute
and deliver this Agreement and to perform in accordance
herewith;
the execution, delivery and performance of this Agreement
(including
all instruments of transfer to be delivered pursuant to this
Agreement)
by the WMMSC Master Servicer and the consummation of the
transactions contemplated hereby have been duly and validly
authorized.
This
Agreement, assuming due authorization, execution and delivery by
the
other
parties hereto, evidences the valid, binding and enforceable
obligation
of the WMMSC Master Servicer, subject to applicable law except
as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other
similar
laws
affecting the enforcement of 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 WMMSC Master Servicer to make this
Agreement
valid and binding upon the WMMSC Master Servicer in accordance
with its
terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the WMMSC Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or
will,
prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the WMMSC Master
Servicer
and will not result in the breach of any term or provision of
the
certificate of incorporation or by-laws of the WMMSC Master
Servicer or
result in
the breach of any term or provision of, or conflict with or
constitute
a default under or result in the acceleration of any obligation
under, any
agreement, indenture or loan or credit agreement or other
instrument
to which the WMMSC Master Servicer or its property is subject,
or result
in the violation of any law, rule, regulation, order, judgment
or decree
to which the WMMSC Master Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the WMMSC Master Servicer, threatened against
the WMMSC
Master Servicer which, either individually or in the aggregate,
would
result in any material adverse change in the business,
operations,
financial
condition, properties or assets of the WMMSC Master Servicer,
or
in any
material impairment of the right or ability of the WMMSC Master
Servicer
to carry on its business substantially as now conducted or
which
would draw
into question the validity of this Agreement or the WMMSC
Master
Serviced Loans or of any action taken or to be taken in
connection
with the
obligations of the WMMSC Master Servicer contemplated herein,
or
which
would materially impair the ability of the WMMSC Master Servicer
to
perform
under the terms of this Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the respective Mortgage Files to the
Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties as to the Mortgage
Loans.
(a) The Representing Party hereby represents and warrants to
the
Trustee with respect to the WMMSC Master Serviced Loans or each
WMMSC Master
Serviced 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
relating
to the
WMMSC Master Serviced Loans was true and correct in all
material
respects
at the date or dates respecting which such information is
furnished;
(ii) As of the Closing Date, each Mortgage relating to a WMMSC
Master
Serviced Loan that is not a Cooperative Loan is a valid and
enforceable (subject to Section 2.04(a)(xv)) first lien on an
unencumbered
estate in
fee simple or (if the related WMMSC Master Serviced Loan is
secured by
the interest of the Mortgagor as a lessee under a ground lease)
leasehold
estate in the related Mortgaged Property subject only to (a)
liens for
current real property taxes and special assessments; (b)
covenants,
conditions and restrictions, rights of way, easements and other
matters of
public record as of the date of recording such Mortgage, such
exceptions
appearing of record being acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal
obtained
in
connection with the origination of the WMMSC Master Serviced Loan;
(c)
exceptions
set forth in the title insurance policy relating to such
Mortgage,
such exceptions being acceptable to mortgage lending
institutions generally; 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;
(iii) As of the day prior to the Cut-off Date, all payments due
on
each WMMSC
Master Serviced Loan had been made and no more than 0.55% of
the WMMSC
Master Serviced Loans (by aggregate Stated Principal Balance as
of the
Cut-off Date) had been delinquent (i.e., was more than 30 days
past
due) more
than once in the preceding 12 months and any such delinquency
lasted for
no more than 30 days, no more than 0.26% of the WMMSC Master
Serviced
Loans (by aggregate Stated Principal Balance as of the Cut-off
Date) had
been delinquent more than twice in the preceding 12 months and
such
delinquencies lasted for no more than 30 days and no WMMSC
Master
Serviced
Loan had been delinquent more than three times in the preceding
12
months.
(iv) As of the Closing Date, there is no late assessment for
delinquent
taxes outstanding against any Mortgaged Property securing a
WMMSC
Master Serviced Loan;
(v) As of the Closing Date, there is no offset, defense or
counterclaim to any Mortgage Note relating to a WMMSC Master
Serviced
Loan,
including the obligation of the Mortgagor to pay the unpaid
principal
or interest on such Mortgage Note;
(vi) As of the Closing Date, each Mortgaged Property securing a
WMMSC
Master Serviced Loan is free of damage and in good repair,
ordinary
wear and
tear excepted;
(vii) 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 WMMSC Master
Serviced
Loan have
been complied with;
(viii) Each WMMSC Master Serviced 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 FHA
and
will be
serviced by an institution which meets the servicer eligibility
requirements established by WMMSC;
(ix) As of the Closing Date, each WMMSC Master Serviced Loan that
is
not a
Cooperative Loan is covered by an ALTA form or CLTA form of
mortgagee
title insurance policy or other form of policy of insurance
which has
been issued by, and is the valid and binding obligation of, a
title
insurer which, as of the origination date of such WMMSC Master
Serviced
Loan, was qualified to do business in the state in which the
related
Mortgaged Property securing the WMMSC Master Serviced Loan is
located.
Such policy insures the originator of the WMMSC Master Serviced
Loan, its
successors and assigns as to the first priority lien of the
Mortgage
in the original principal amount of the WMMSC Master Serviced
Loan
subject to the exceptions set forth in such policy. Such policy is
in
full force
and effect and inures to the benefit of the Trust upon the
consummation of the transactions contemplated by this Agreement and
no
claims
have been made under such policy, and no prior holder of the
related
Mortgage has done, by act or omission, anything which would
impair
the
coverage of such policy;
(x) Each WMMSC Master Serviced Loan with a Loan-to-Value Ratio as
of
the
Cut-off Date in excess of 80% was covered by a Primary Mortgage
Insurance
Policy or an FHA insurance policy or a VA guaranty, and such
policy or
guaranty is valid and remains in full force and effect;
(xi) As of the Closing Date, all policies of insurance required
by
this
Agreement or by a Servicing Contract have been validly issued
and
remain in
full force and effect, including such policies covering the
Depositor,
the WMMSC Master Servicer or any WMMSC Servicer;
(xii) As of the Closing Date, each insurer issuing a Primary
Mortgage
Insurance Policy holds a rating acceptable to the Rating
Agencies;
(xiii) Each Mortgage (exclusive of any riders thereto) relating to
a
WMMSC
Master Serviced Loan was documented by appropriate FNMA/FHLMC
mortgage
instruments in effect at the time of origination;
(xiv) As of the Closing Date, the Mortgaged Property securing
each
Mortgage
relating to a WMMSC Master Serviced Loan that is not a
Cooperative Loan is improved with a one- to four-family dwelling
unit,
including
units in a duplex, triplex, fourplex, condominium project,
townhouse,
a planned unit development or a de minimis planned unit
development;
(xv) As of the Closing Date, each Mortgage and Mortgage Note
relating
to a WMMSC Master Serviced Loan is the legal, valid and binding
obligation
of the maker thereof and is enforceable in accordance with its
terms,
except only as such enforcement may be limited by laws
affecting
the
enforcement of creditors' rights generally and principles of
equity;
(xvi) As of the date of origination, as to Mortgaged Properties
securing
WMMSC Master Serviced Loan which are units in condominiums or
planned
unit developments, all of such units met the applicable
Underwriting Guidelines, were located in a condominium or planned
unit
development project which received FNMA or FHLMC approval, or
are
approvable
by FNMA or FHLMC or otherwise was approved by the Depositor;
(xvii) None of the WMMSC Master Serviced Loans are "buydown"
loans;
(xviii) None of the WMMSC Master Serviced Loans are covered by a
FHA
insurance
policy or VA insurance policy;
(xix) Based solely on representations of the Mortgagors obtained
at
the
origination of the related WMMSC Master Serviced Loans,
approximately
99.28% (by
aggregate Stated Principal Balance as of the Cut-off Date) of
the WMMSC
Master Serviced Loans in Loan Group 1 will be secured by owner
occupied
Mortgaged Properties which are the primary residences of the
related
Mortgagors, approximately 0.72% (by aggregate Stated Principal
Balance as
of the Cut-off Date) of the WMMSC Master Serviced Loans in Loan
Group 1
will be secured by owner occupied Mortgaged Properties which
were
second or
vacation homes of the Mortgagors and none of the WMMSC Master
Serviced
Loans in Loan Group 1 will be secured by Mortgaged Properties
which were
investor properties of the related Mortgagors; all of the WMMSC
Master
Serviced Loans in Loan Group 4 will be secured by owner
occupied
Mortgaged
Properties which are the primary residences of the related
Mortgagors, none of the WMMSC Master Serviced Loans in Loan Group 4
will
be secured
by owner occupied Mortgaged Properties which were second or
vacation
homes of the Mortgagors and none of the WMMSC Master Serviced
Loans in
Loan Group 4 will be secured by Mortgaged Properties which were
investor
properties of the related Mortgagors;
(xx) Prior to origination or refinancing, an appraisal of each
Mortgaged
Property securing a WMMSC Master Serviced Loan was made by an
appraiser
on a form satisfactory to FNMA or FHLMC;
(xxi) The WMMSC Master Serviced Loans have been underwritten
substantially in accordance with the applicable Underwriting
Guidelines;
(xxii) If the WMMSC Master Serviced 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;
(xxiii) All of the WMMSC Master Serviced Loans have due-on-sale
clauses;
however, the due on sale provisions may not be exercised at the
time of a
transfer if prohibited by law;
(xxiv) With respect to each WMMSC Master Serviced Loan that is
a
Cooperative Loan, the Cooperative Stock that is pledged as security
for
the
Cooperative Loan is held by a person as a tenant-stockholder
(as
defined in
Section 216 of the Code) in a cooperative housing corporation
(as
defined in Section 216 of the Code);
(xxv) Each WMMSC Master Serviced Loan that is a Cooperative Loan
is
secured by
a valid, subsisting and enforceable (except as such enforcement
may be
limited by laws affecting the enforcement of creditors' rights
generally
and principles of equity) perfected first lien and security
interest
in the related Cooperative Stock securing the related Mortgage
Note,
subject only to (a) liens of the Cooperative for unpaid
assessments
representing the Mortgagor's pro rata share of the Cooperative's
payments
for its
blanket mortgage, current and future real property taxes,
insurance
premiums, maintenance fees and other assessments to which like
collateral
is commonly subject, and (b) other matters to which like
collateral
is commonly subject which do not materially interfere with the
benefits
of the security intended to be provided by the Security
Agreement;
(xxvi) With respect to any WMMSC Master Serviced Loan as to which
an
affidavit
has been delivered to the Trustee or related Custodian
certifying
that the original Mortgage Note is lost or destroyed, if such
WMMSC
Master Serviced Loan is subsequently in default, the enforcement
of
such WMMSC
Master Serviced Loan or of the related Mortgage by or on behalf
of the
Trust will not be materially adversely affected by the absence
of
the
original Mortgage Note (or portion thereof, as applicable);
(xxvii) Based upon an appraisal of the Mortgaged Property
securing
each WMMSC
Master Serviced Loan, as of the Cut-off Date approximately
99.54% (by
aggregate Stated Principal Balance as of the Cut-off Date) of
the WMMSC
Master Serviced Loans in Loan Group 1 had a Loan-to-Value Ratio
less than
or equal to 80%, approximately 0.46% (by aggregate Stated
Principal Balance as
of the Cut-off Date) of the WMMSC Master Serviced
Loans in
Group 1 had a Loan-to-Value Ratio greater than 80% but less
than
or equal
to 95%, none of the WMMSC Master Serviced Loans in Loan Group 1
had a
Loan-to-Value Ratio greater than 95% and all of the WMMSC
Master
Serviced
Loans in Loan Group 4 had a Loan-to-Value Ratio less than or
equal to
80%;
(xxviii) Approximately 76.71% (by aggregate Stated Principal
Balance
as of the
Cut-off Date) of the WMMSC Master Serviced Loans in Loan Group
1
and
approximately 86.74% (by aggregate Stated Principal Balance as of
the
Cut-off
Date) of the WMMSC Master Serviced Loans in Loan Group 4 were
originated
for the purpose of refinancing existing mortgage debt,
including
cash-out refinancings; and approximately 23.29% (by aggregate
Stated
Principal Balance as of the Cut-off Date) of the WMMSC Master
Serviced
Loans in Loan Group 1 and approximately 13.26% (by aggregate
Stated
Principal Balance as of the Cut-off Date) of the WMMSC Master
Serviced
Loans in Loan Group 4 were originated for the purpose of
purchasing
the Mortgaged Property;
(xxix) Not less than approximately 74.74% and approximately
71.88%
(each by
aggregate Stated Principal Balance as of the Cut-off Date) of
the
WMMSC
Master Serviced Loans in Loan Group 1 and WMMSC Master Serviced
Loans in
Loan Group 4, respectively, were originated under full
documentation programs;
(xxx) No WMMSC Master Serviced Loan is a "high cost" loan as
defined
under any
federal, state or local law applicable to such Mortgage at the
time of
its origination;
(xxxi) Each WMMSC Master Serviced Loan constitutes a qualified
mortgage
under Section 860G(a)(3)(A) of the Code and Treasury
Regulations
Section
1.860G-2(a)(1);
(xxxii) The Mortgage Note and the Mortgage relating to each
WMMSC
Master
Serviced Loan are genuine, and each is the legal, valid and
binding
obligation
of the maker thereof and each party assuming liability
therefor,
enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization,
moratorium, or other similar laws affecting the enforcement of
creditors'
rights
generally and except that the equitable remedy of specific
performance and other equitable remedies are subject to the
discretion of
the
courts;
(xxxiii) With respect to each WMMSC Master Serviced Loan, there
are
no
mechanics' or similar liens or claims which have been filed for
work,
labor, or
material (and no rights are outstanding that under law could
give rise
to such lien) which are, or may be, liens prior or equal to the
lien of
the related Mortgage, which are not insured against by the
related
mortgagee's policy of title insurance; and
(xxxiv) No WMMSC Master Serviced Loan is a High Cost Loan or
Covered
Loan (as
such terms are defined in the Standard & Poor's LEVELS(R)
Glossary
in effect on the Closing Date, which is now Version 5.6
Revised,
Appendix
E, applicable portions of which are attached hereto as Exhibit
T
hereto),
except that the definition of a High Cost Loan for the purposes
hereof
shall not include loans originated in Los Angeles or Oakland,
California, and no WMMSC Master Serviced 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 Representing Party as to the environmental condition of
any
Mortgaged Property securing a WMMSC Master Serviced Loan; the
absence, presence
or effect of hazardous wastes or hazardous substances on any
Mortgaged Property
securing a WMMSC Master Serviced Loan; any casualty resulting from
the presence
or effect of hazardous wastes or hazardous substances on, near or
emanating from
any Mortgaged Property securing a WMMSC Master Serviced Loan; the
impact on
Certificateholders of any environmental condition or presence of
any hazardous
substance on or near any Mortgaged Property securing a WMMSC Master
Serviced
Loan; or the compliance of any Mortgaged Property securing a WMMSC
Master
Serviced Loan with any environmental laws, nor is any agent, Person
or entity
otherwise affiliated with the Representing Party authorized or able
to make any
such representation, warranty or assumption of liability relative
to any
Mortgaged Property securing a WMMSC Master Serviced Loan. In
addition, no
representations or warranties are made by the Representing Party
with respect to
the absence or effect of fraud in the origination of any WMMSC
Master Serviced
Loan.
(b) The Depositor hereby represents and warrants to the Trustee
with
respect to the Mortgage Loans or each Mortgage Loan, as the case
may be, as of
the date hereof or such other date set forth herein that as of the
Closing Date:
(i) Immediately prior to the transfer and assignment
contemplated
herein,
the Depositor was the sole owner and holder of the Mortgage
Loans.
The
Mortgage Loans were not assigned or pledged by the Depositor and
the
Depositor
had good and marketable title thereto, and the Depositor had
full right
to transfer and sell the Mortgage Loans to the Trustee free and
clear of
any encumbrance, participation interest, lien, equity, pledge,
claim or
security interest and had full right and authority subject to
no
interest
or participation in, or agreement with any other party to sell
or
otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right,
title and interest in the Mortgage Loans to the Trustee on
behalf
of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred
the
Mortgage
Loans to the Trustee on behalf of the Trust with any intent to
hinder,
delay or defraud an of its creditors.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall survive delivery of the
respective Mortgage
Files to the Trustee or the related Custodian and shall inure to
the benefit of
the Trustee, notwithstanding any restrictive or qualified
endorsement or
assignment.
Upon discovery by any of the Depositor, the Representing Party,
either Master 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 (the Custodian being so obligated under the 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 Representing Party, if such breach relates to
a
representation and warranty set forth in Section 2.04(a), or the
Depositor, if
such breach relates to a representation and warranty set forth in
Section
2.04(b), shall cure such breach in all material respects or shall
either (i)
repurchase the Mortgage Loan or any property acquired in respect
thereof from
the Trustee at a price equal to the Purchase Price or (ii) if
within two years
of the Closing Date, substitute for such Mortgage Loan in the
manner described
in Section 2.02; provided that if the breach would cause the
Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3)
of the Code,
any such repurchase or substitution must occur within 90 days from
the date the
breach was discovered. In addition to the foregoing, if a breach of
the
representation set forth in clause (vii) or clause (xxxiv) of
Section 2.04(a)
occurs as a result of a violation of an applicable predatory or
abusive lending
law, the Representing Party 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
"WMMSC Master Serviced Loan Reimbursement Amount"). The Purchase
Price of any
repurchase described in this paragraph, the Substitution Adjustment
Amount, if
any, and any WMMSC Master Serviced Loan Reimbursement Amount shall
be remitted
to the applicable Master Servicer for deposit to the related Master
Servicer
Custodial Account. It is understood and agreed that, except with
respect to the
second preceding sentence, the obligation of the Representing Party
or the
Depositor, as applicable, 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 Senior Certificates (other than
the Class 1-A-R
and Class 1-A-LR Certificates) and the Classes of Class B
Certificates as
"regular interests" and the Class 1-A-R Certificate as the single
class of
"residual interest" in the Upper Tier REMIC for the purposes of
Code Sections
860G(a)(1) and 860G(a)(2), respectively. The Depositor hereby
further designates
the Class 1-L Interest, Class 1-LS Interest, Class 2-L Interest,
Class 2-LS
Interest, Class 3-L Interest, Class 3-LS Interest, Class 4-L
Interest, Class
4-LS Interest, Class 5-L Interest and Class 5-LS Interest as
classes of "regular
interests" and the Class 1-LR-E Interest as the single class of
"residual
interest" in the Pooling REMIC for the purposes of Code Sections
860G(a)(1) and
860G(a)(2), respectively. The Depositor hereby further designates
(i) the WF
Group 4 Regular Interest as the class of "regular interests" and
the Class
1-LR-A Interest as the single class of "residual interest" in the
WF Group 4
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively;
(ii) the WF RCR Regular Interest as the class of "regular
interests" and the
Class 1-LR-B Interest as the single class of "residual interest" in
the WF RCR
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively;
(iii) the WMMSC Group 1 Regular Interest as the class of "regular
interests" and
the Class 1-LR-C Interest as the single class of "residual
interest" in the
WMMSC Group 1 REMIC for the purposes of Code Sections 860G(a)(1)
and 860G(a)(2),
respectively; and (iv) the WMMSC Group 4 Regular Interest as the
class of
"regular interests" and the Class 1-LR-D Interest as the single
class of
"residual interest" in the WMMSC Group 4 REMIC for the purposes of
Code Sections
860G(a)(1) and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each REMIC within the meaning
of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the "latest
possible maturity date" of the regular interests in each REMIC is
January 25,
2035.
Section 2.08 Execution and Delivery of Certificates. The
Securities
Administrator (i) acknowledges the issuance of and hereby declares
that it holds
the Uncertificated Group REMIC Regular Interests on behalf of the
Pooling REMIC
and the Certificateholders and that it holds the Uncertificated
Pooling REMIC
Regular 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, the Uncertificated Group REMIC
Regular
Interests and the Uncertificated Pooling REMIC 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 Group REMIC Regular Interests and the
Uncertificated
Pooling REMIC Interests, evidence ownership of the entire Trust
Estate.
Section 2.09 Repurchase of Converted Mortgage Loans. The
Depositor
shall repurchase from the Trust any Converted Mortgage Loan prior
to the first
Due Date for such Mortgage Loan following the Conversion Date. Any
such
repurchase shall be at the Purchase Price. The Purchase Price for
any
repurchased Converted Mortgage Loan shall be delivered to the
related Master
Servicer for deposit to the applicable Master Servicer Custodial
Account and,
upon receipt by the Trustee or the Custodian on behalf of the
Trustee, as the
case may be, of written notification of any such deposit signed by
an officer of
the Depositor and a Request for Release, the Trustee or Custodian,
as
applicable, shall release to the Depositor the related Mortgage
File and shall
execute and deliver such instruments of transfer or assignment
prepared by the
Depositor, in each case without recourse, as shall be necessary to
vest in the
Depositor legal and beneficial ownership of such Converted Mortgage
Loan.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.
(a) For and on behalf of the Certificateholders, the WF Master
Servicer shall supervise, monitor and oversee the obligations of
the WF
Servicers to service and administer their respective WF Master
Serviced Loans in
accordance with the terms of the applicable Servicing Agreement and
shall have
full power and authority to do any and all things which it may deem
necessary or
desirable in connection with such master servicing and
administration. In
performing its obligations hereunder, the WF Master Servicer shall
act in a
manner consistent with this Agreement, subject to the prior
sentence, and with
Customary Servicing Procedures. Furthermore, the WF Master Servicer
shall
oversee and consult with each WF Servicer as necessary from
time-to-time to
carry out the WF Master Servicer's obligations hereunder, shall
receive, review
and evaluate all reports, information and other data provided to
the WF Master
Servicer by each WF Servicer and shall cause each WF Servicer to
perform and
observe the covenants, obligations and conditions to be performed
or observed by
such WF Servicer under the applicable Servicing Agreement. The WF
Master
Servicer shall independently and separately monitor each WF
Servicer's servicing
activities with respect to each related WF Master Serviced Loan,
reconcile the
results of such monitoring with such information provided in the
previous
sentence on a monthly basis and coordinate corrective adjustments
to the WF
Servicers' and the WF Master Servicer's records, and based on such
reconciled
and corrected information, prepare the WF Master Servicer's
Certificate and any
other information and statements required hereunder. The WF Master
Servicer
shall reconcile the results of its Mortgage Loan monitoring with
the actual
remittances of the WF Servicers to the WF Master Servicer Custodial
Account
pursuant to the applicable Servicing Agreements.
Continuously from the date hereof until the principal and
interest
on all WF Master Serviced Loans are paid in full, the WF Master
Servicer shall
enforce the obligations of the WF Servicers to collect all payments
due under
the terms and provisions of the WF Master Serviced Loans when the
same shall
become due and payable to the extent such procedures shall be
consistent with
the applicable Servicing Agreement.
The relationship of the WF Master Servicer (and of any successor
to
the WF Master Servicer as master servicer under this Agreement) to
the Trustee
and the Securities Administrator under this Agreement is intended
by the parties
to be that of an independent contractor and not that of a joint
venturer,
partner or agent.
(b) The WMMSC Master Servicer shall act as master servicer to
service and administer the WMMSC Master Serviced Loans on behalf of
the Trust in
accordance with the terms hereof, consistent with prudent mortgage
loan
servicing practices and (unless inconsistent with prudent mortgage
loan
servicing practices) in the same manner in which, and with the same
care, skill,
prudence and diligence with which, it services and administers
similar mortgage
loans for other portfolios, and shall have full power and authority
to do or
cause to be done any and all things in connection with such
servicing and
administration which a prudent servicer of mortgage loans would do
under similar
circumstances, including, without limitation, the power and
authority to bring
actions and defend the Trust Estate on behalf of the Trust in order
to enforce
the terms of the related Mortgage Notes. The WMMSC Master Servicer
may perform
its master servicing responsibilities through agents or independent
contractors,
including the WMMSC Servicers, but shall not thereby be released
from any of its
master servicing or servicing responsibilities hereunder and the
WMMSC Master
Servicer shall diligently pursue all of its rights against such
agents or
independent contractors.
The WMMSC Master Servicer shall make reasonable efforts to
collect
or cause to be collected all payments called for under the terms
and provisions
of the WMMSC Master Serviced Loans and shall, to the extent such
procedures
shall be consistent with this Agreement and the terms and
provisions of any
Primary Mortgage Insurance Policy, any FHA insurance policy or VA
guaranty, any
hazard insurance policy, and federal flood insurance, cause to be
followed such
collection procedures as are followed with respect to mortgage
loans comparable
to the WMMSC Master Serviced Loans and held in portfolios of
responsible
mortgage lenders in the local areas where each Mortgaged Property
is located.
The WMMSC Master Servicer shall enforce "due-on-sale" clauses with
respect to
the related Mortgage Loans, to the extent permitted by law, subject
to the
provisions set forth in Section 3.14.
Consistent with the foregoing, the WMMSC Master Servicer may,
in
accordance with prudent mortgage loan servicing practices, (i)
waive or cause to
be waived any assumption fee or late payment charge in connection
with the
prepayment of any WMMSC Master Serviced Loan and (ii) only upon
determining that
the coverage of any applicable insurance policy or guaranty related
to a WMMSC
Master Serviced Loan will not be materially adversely affected,
arrange a
schedule, running for no more than 180 days after the first
delinquent Due Date,
for payment of any delinquent installment on any Mortgage Note or
for the
liquidation of delinquent items. The WMMSC Master Servicer shall
have the right,
but not the obligation, to purchase any WMMSC Master Serviced Loan
delinquent 90
consecutive days or more for an amount equal to its Purchase Price;
provided,
however, that the aggregate Purchase Price of WMMSC Master Serviced
Loans so
purchased pursuant to this sentence shall not exceed one-half of
one percent
(0.50%) of the aggregate Stated Principal Balance, as of the
Cut-off Date, of
all WMMSC Master Serviced Loans. For purposes of this paragraph, a
WMMSC Master
Serviced Loan is considered delinquent for 90 consecutive days if a
Monthly
Payment is not received by the first day of the third month
following the month
during which such payment was due.
Consistent with the terms of this Section 3.01, the WMMSC
Master
Servicer may waive, modify or vary any term of any WMMSC Master
Serviced Loan or
consent to the postponement of strict compliance with any such term
or in any
manner grant indulgence to any Mortgagor if it has determined,
exercising its
good faith business judgment in the same manner as it would if it
were the owner
of the related WMMSC Master Serviced Loan, that the security for,
and the timely
and full collectability of, such Mortgage Loan would not be
adversely affected
by such waiver, modification, postponement or indulgence; provided,
however,
that the WMMSC Master Servicer shall not permit any modification
with respect to
any WMMSC Master Serviced Loan that would (i) change the applicable
Mortgage
Interest Rate, defer (except as permitted in the preceding
paragraph) or forgive
the payment of any principal or interest, reduce the outstanding
principal
balance (except for actual payments of principal) or extend the
final maturity
date with respect to such Mortgage Loan, or (ii) be inconsistent
with the terms
of any applicable Primary Mortgage Insurance Policy, FHA insurance
policy, VA
guaranty, hazard insurance policy or federal flood insurance
policy.
Notwithstanding the foregoing, the WMMSC Master Servicer shall not
permit any
modification with respect to any WMMSC Master Serviced Loan that
would both
constitute a sale or exchange of such Mortgage Loan within the
meaning of
Section 1001 of the Code (including any proposed, temporary or
final regulations
promulgated thereunder) (other than in connection with a proposed
conveyance or
assumption of such Mortgage Loan that is treated as a Principal
Prepayment or in
a default situation) and cause any REMIC to fail to qualify as such
under the
Code. The WMMSC Master Servicer shall be entitled to approve a
request from a
Mortgagor for a partial release of the related Mortgaged Property,
the granting
of an easement thereon in favor of another Person, any alteration
or demolition
of the related Mortgaged Property or other similar matters if it
has determined,
exercising its good faith business judgment in the same manner as
it would if it
were the owner of the related WMMSC Master Serviced Loan, that the
security for,
and the timely and full collectability of, such WMMSC Master
Serviced Loan would
not be adversely affected thereby and that no REMIC created hereby
would fail to
continue to qualify as a REMIC under the Code as a result thereof
and that no
tax on "prohibited transactions" or "contributions" after the
startup day would
be imposed on any REMIC as a result thereof.
The WMMSC Master Servicer is hereby authorized and empowered by
the
Trust to execute and deliver or cause to be executed and delivered
on behalf of
the Holders of the Regular Certificates and the Class 1-A-LR
Certificate, and
the Trust or any of them, any and all instruments of satisfaction
or
cancellation, or of partial or full release, discharge or
modification,
assignments of Mortgages and endorsements of Mortgage Notes in
connection with
refinancings (in jurisdictions where such assignments are the
customary and
usual standard of practice of mortgage lenders) and all other
comparable
instruments, with respect to the WMMSC Master Serviced Loans and
with respect to
the Mortgaged Properties. The WMMSC Master Servicer is hereby
further authorized
and empowered by the Trust to execute and deliver or cause to be
executed and
delivered on behalf of the Holders of the Regular Certificates and
the Residual
Certificates and the Trust, or any of them, such instruments of
assignment or
other comparable instruments as the WMMSC Master Servicer shall, in
its sole
judgment, deem appropriate in order to register any WMMSC Master
Serviced Loan
on the MERS system or to cause the removal of any WMMSC Master
Serviced Loan
from registration thereon. Any expenses incurred in connection with
the actions
described in the preceding sentence shall be borne by the WMMSC
Master Servicer
with no right of reimbursement; provided, however, that any such
expenses
incurred as a result of any termination by MERS of the MERS system
shall be
reimbursable to the WMMSC Master Servicer. The Trustee on behalf of
the Trust
shall execute and furnish to the WMMSC Master Servicer, at the
WMMSC Master
Servicer's direction, any powers of attorney and other documents
prepared by the
WMMSC Master Servicer and determined by the WMMSC Master Servicer
to be
necessary or appropriate to enable the WMMSC Master Servicer to
carry out its
supervisory, servicing and administrative duties under this
Agreement.
In connection with the servicing and administering of each
WMMSC
Master Serviced Loan, the WMMSC Master Servicer and any affiliate
of the WMMSC
Master Servicer (i) may perform services such as appraisals,
default management
and (in the case of affiliates only) brokerage services that are
not customarily
provided by servicers of mortgage loans, and shall be entitled to
reasonable
compensation therefor and (ii) may, at its own discretion and on
behalf of the
Trust, obtain credit information in the form of a "credit score"
from a credit
repository.
Section 3.02 Monitoring of WF Servicers.
(a) The WF Master Servicer shall be responsible for reporting to
the
Trustee, the Securities Administrator and the Depositor the
compliance by each
WF Servicer with its duties under the related Servicing Agreement.
In the review
of each WF Servicer's activities, the WF Master Servicer may rely
upon an
officer's certificate of the WF Servicer with regard to such WF
Servicer's
compliance with the terms of its Servicing Agreement. In the event
that the WF
Master Servicer, in its judgment, determines that a WF Servicer
should be
terminated in accordance with its Servicing Agreement, or that a
notice should
be sent pursuant to such Servicing Agreement with respect to the
occurrence of
an event that, unless cured, would constitute grounds for such
termination, the
WF Master Servicer shall notify the Depositor, the Securities
Administrator and
the Trustee thereof and the WF Master Servicer shall issue such
notice or take
such other action as it deems appropriate.
(b) The WF Master Servicer, for the benefit of the Trustee and
the
Certificateholders, shall enforce the obligations of each WF
Servicer under the
related Servicing Agreement, and shall, in the event that a WF
Servicer fails to
perform its obligations in accordance with the related Servicing
Agreement,
subject to the preceding paragraph, terminate the rights and
obligations of such
WF Servicer thereunder and act as successor WF Servicer of the
related WF Master
Serviced Loans under the applicable Servicing Agreement (except, in
the case of
the termination of Wells Fargo Bank as a Servicer under the Wells
Fargo
Servicing Agreement, the Trustee shall either act as successor
Servicer or shall
appoint a successor Servicer of the related WF Master Serviced
Loans under the
Wells Fargo Servicing Agreement) or cause the Trustee to enter in
to a new
Servicing Agreement with a successor Servicer selected by the WF
Master Servicer
(except, in the case of the Wells Fargo Servicing Agreement, the
Trustee shall
select the successor Servicer); provided, however, it is understood
and
acknowledged by the parties hereto that there will be a period of
transition
(not to exceed 90 days) before the actual servicing functions can
be fully
transferred to such successor WF Servicer. Such enforcement,
including, without
limitation, the legal prosecution of claims, termination of
Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such
form and carried
out to such an extent and at such time as the WF Master Servicer,
in its good
faith business judgment, would require were it the owner of the
related WF
Master Serviced Loans. The WF Master Servicer and Trustee, as
applicable, shall
pay the costs of such enforcement at its own expense, and shall be
reimbursed
therefor only (i) from a general recovery resulting from such
enforcement to the
extent, if any, that such recovery exceeds all amounts due in
respect of the
related WF Master Serviced Loan or (ii) from a specific recovery of
costs,
expenses or attorneys fees against the party whom such enforcement
is directed,
provided that the WF Master Servicer and the Trustee, as
applicable, shall not
be required to prosecute or defend any legal action except to the
extent that
the WF Master Servicer or the Trustee, as applicable, shall have
received
reasonable indemnity for its costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the WF Master
Servicer or the Trustee, as applicable, related to any termination
of a WF
Servicer, appointment of a successor WF Servicer or the transfer
and assumption
of servicing by the WF Master Servicer or the Trustee, as
applicable, with
respect to any Servicing Agreement (including, without limitation,
(i) all legal
costs and expenses and all due diligence costs and expenses
associated with an
evaluation of the potential termination of the WF Servicer as a
result of an
Event of Default by such WF Servicer and (ii) all costs and
expenses associated
with the complete transfer of servicing, including all servicing
files and all
servicing data and the completion, correction or manipulation of
such servicing
data as may be required by the successor WF Servicer to correct any
errors or
insufficiencies in the servicing data or otherwise to enable the
successor
Servicer to service the WF Master Serviced Loans in accordance with
the related
Servicing Agreement) are not fully and timely reimbursed by the
terminated WF
Servicer, the WF Master Servicer or the Trustee, as applicable,
shall be
entitled to reimbursement of such costs and expenses from the WF
Master Servicer
Custodial Account.
(d) The WF Master Servicer shall require each WF Servicer to
comply
with the remittance requirements and other obligations set forth in
the related
Servicing Agreement.
(e) If the WF Master Servicer acts as WF Servicer, it will not
assume liability for the representations and warranties of the WF
Servicer, if
any, that it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
Each
Master Servicer and WMMSC Servicer shall maintain, at its own
expense, a blanket
fidelity bond and an errors and omissions insurance policy, with
broad coverage
on all officers, employees or other persons involved in the
performance of its
obligations as Master Servicer hereunder or with respect to a WMMSC
Servicer,
their obligations under the applicable Servicing Contract. These
policies must
insure the Master Servicers and WMMSC Servicers against losses
resulting from
dishonest or fraudulent acts committed by the related Master
Servicer's or WMMSC
Servicer's personnel, any employees of outside firms that provide
data
processing services for the related Master Servicer or WMMSC
Servicer, and
temporary contract employees or student interns. No provision of
this Section
3.03 requiring such fidelity bond and errors and omissions
insurance shall
diminish or relieve the Master Servicers or WMMSC Servicer from its
duties and
obligations as set forth in this Agreement or in a Servicing
Contract, as
applicable. The minimum coverage under any such bond and insurance
policy shall
be at least equal to the corresponding amounts required by FNMA in
the FNMA
Servicing Guide or by FHLMC in the FHLMC Sellers' & Servicers'
Guide, as amended
or restated from time to time, or in an amount as may be permitted
to the Master
Servicers or WMMSC Servicer by express waiver of FNMA or FHLMC. In
the event
that any such policy or bond ceases to be in effect, the Master
Servicers and
WMMSC Servicers shall obtain a comparable replacement policy or
bond from an
insurer or issuer, meeting the requirements set forth above as of
the date of
such replacement.
Section 3.04 Access to Certain Documentation.
The WMMSC Master Servicer and the WF Master Servicer shall
provide,
and the WF Master Servicer shall cause each WF Servicer to provide
in accordance
with the related Servicing Agreement, to the OTS, the OCC, the FDIC
and to
comparable regulatory authorities supervising Holders of
Certificates and the
examiners and supervisory agents of the OTS, the OCC, the FDIC and
such other
authorities, access to the documentation required by applicable
regulations of
the OTS, the OCC, the FDIC and such other authorites with respect
to the
Mortgage Loans and shall in any event provide such access to the
documentation
regarding such Mortgage Loans to the Trustee, the Securities
Administrator and
their representatives. 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 related Master Servicer and the
related Servicer.
In fulfilling such request for access, the WF Master Servicer shall
not be
responsible to determine the sufficiency of any information
provided by such WF
Servicer. Nothing in this Section 3.04 shall limit the obligation
of the related
Master Servicer and the related Servicer to observe any applicable
law and the
failure of the related Master Servicer or the related Servicer to
provide access
as provided in this Section 3.04 as a result of such obligation
shall not
constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The WF Master Servicer shall not take, or permit any WF
Servicer
(to the extent such action is prohibited under the applicable
Servicing
Agreement) to take, any action that would result in noncoverage
under any
applicable Primary Mortgage Insurance Policy of any loss which, but
for the
actions of such the WF Master Servicer or WF Servicer, would have
been covered
thereunder. The WF Master Servicer shall use its best reasonable
efforts to
cause each WF Servicer (to the extent required under the related
Servicing
Agreement) to keep in force and effect (to the extent that the WF
Master
Serviced Loan requires the Mortgagor to maintain such insurance),
primary
mortgage insurance applicable to each WF Master Serviced Loan in
accordance with
the provisions of this Agreement and the related Servicing
Agreement, as
applicable. The WF Master Servicer shall not, and shall not permit
any WF
Servicer (to the extent required under the related Servicing
Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in
effect at the date of the initial issuance of the Mortgage Note and
is required
to be kept in force hereunder except in accordance with the
provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The WF Master Servicer agrees to present, or to cause each
WF
Servicer (to the extent required under the related Servicing
Agreement) to
present, on behalf of the Trustee and the Certificateholders,
claims to the
insurer under any Primary Mortgage Insurance Policies and, in this
regard, to
take such reasonable action as shall be necessary to permit
recovery under any
Primary Mortgage Insurance Policies respecting defaulted WF Master
Serviced
Loans. Pursuant to Sections 3.08 and 3.09, any amounts collected by
the WF
Master Servicer or any WF Servicer under any Primary Mortgage
Insurance Policies
shall be deposited in the WF Master Servicer Custodial Account,
subject to
withdrawal pursuant to Section 3.11.
(c) The WMMSC Master Servicer shall use commercially reasonable
efforts to keep, and to cause the WMMSC Servicers to keep, in full
force and
effect each Primary Mortgage Insurance Policy with respect to a
WMMSC Master
Serviced Loan with a Loan-to-Value Ratio in excess of 80%, until no
longer
required or until no longer permitted under applicable law.
Notwithstanding the
foregoing, the WMMSC Master Servicer shall have no obligation to
maintain any
Primary Mortgage Insurance Policy for a WMMSC Master Serviced Loan
for which the
outstanding Principal Balance thereof at any time subsequent to
origination was
80% or less of the Appraised Value of the related Mortgaged
Property, unless
required by applicable law.
Unless required by applicable law, the WMMSC Master Servicer
shall
not cancel or refuse to renew, or allow any WMMSC Servicer under
its supervision
to cancel or refuse to renew, any Primary Mortgage Insurance Policy
in effect at
the date of the initial issuance of the Certificates that is
required to be kept
in force hereunder; provided, however, that neither the WMMSC
Master Servicer
nor any WMMSC Servicer shall advance funds for the payment of any
premium due
under any Primary Mortgage Insurance Policy if it shall determine
that such an
advance would be a Nonrecoverable Advance.
The WMMSC Master Servicer agrees to present, or cause to be
presented, on behalf of and for the benefit of the Trust, claims
under the
Primary Mortgage Insurance Policy respecting any WMMSC Master
Serviced Loan, and
in this regard to take such reasonable actions as shall be
necessary to permit
recovery under such Primary Mortgage Insurance Policy.
Section 3.06 Rights of the Depositor, the Securities
Administrator
and the Trustee in Respect of the Master Servicers.
The Depositor may, but is not obligated to, enforce the
obligations
of the Master Servicers hereunder and may, but is not obligated to,
perform, or
cause a designee to perform, any defaulted obligation of either
Master Servicer
hereunder and in connection with any such defaulted obligation to
exercise the
related rights of a Master Servicer hereunder; provided that a
Master Servicer
shall not be relieved of any of its obligations hereunder by virtue
of such
performance by the Depositor or its designee. None of the
Securities
Administrator, the Trustee or the Depositor shall have any
responsibility or
liability for any action or failure to act by either Master
Servicer and the
Securities Administrator, the Trustee or the Depositor shall not be
obligated to
supervise the performance of a Master Servicer hereunder or
otherwise.
Section 3.07 Trustee to Act as Master Servicer.
In the event a Master Servicer or any successor master servicer
shall for any reason no longer be a Master Servicer hereunder
(including by
reason of an Event of Default), the Trustee as trustee hereunder
shall within 90
days of such time, assume, if it so elects, or shall appoint a
successor Master
Servicer to assume, all of the rights and obligations of such
Master Servicer
hereunder and all of the rights and obligations of such Master
Servicer under
the Servicing Contracts or Servicing Agreements, as applicable,
with respect to
the related Mortgage Loans, unless the Trustee elects to terminate
the Servicing
Contracts or Servicing Agreements, as applicable, with respect to
such Mortgage
Loans in accordance with the terms thereof. Unless the Trustee so
elects to
terminate the Servicing Contracts or Servicing Agreements, as
applicable, the
Trustee, its designee or the successor master servicer for the
Trustee shall be
deemed to have assumed all of the applicable Master Servicer's
interest therein
with respect to the related Mortgage Loans and to have replaced the
applicable
Master Servicer as a party to the Servicing Contracts or Servicing
Agreements,
as applicable, to the same extent as if the rights and duties under
the
Servicing Contracts or Servicing Agreements relating to such
Mortgage Loans had
been assigned to the assuming party, except that the related Master
Servicer
shall not thereby be relieved of any liability or obligations under
the
Servicing Contracts or Servicing Agreements, as applicable, with
respect to the
related Master Servicer's duties to be performed prior to its
termination
hereunder. Any such assumption shall be subject to Sections 7.02
and 8.05.
In addition, with respect to the WMMSC Master Serviced Loans
for
which the WMMSC Master Servicer has not entered into a Servicing
Contract, if
the WMMSC Master Servicer shall for any reason no longer be the
WMMSC Master
Servicer, the Trustee as trustee hereunder shall assume, within 90
days of such
time, or shall appoint a successor Servicer to assume, all of the
rights and
obligations of the WMMSC Master Servicer as WMMSC Servicer with
respect to such
WMMSC Mortgage Loans.
A Master Servicer at its expense shall, upon request of the
Trustee,
deliver to the assuming party all documents and records relating to
the
Servicing Contracts and the Mortgage Loans then being master
serviced and
serviced by such Master Servicer and an accounting of amounts
collected and held
by such Master Servicer, and shall transfer control of the related
Master
Servicer Custodial Account, Escrow Accounts and any investment
accounts to the
successor Master Servicer, and otherwise use its best efforts to
effect the
orderly and efficient transfer of the rights and duties under the
related
Servicing Contracts relating to such Mortgage Loans to the assuming
party. The
Trustee shall be entitled to be reimbursed from the predecessor
Master Servicer
(or the Trust if the predecessor Master Servicer is unable to
fulfill such
obligations) for all Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts.
(a) The WF Master Servicer shall enforce the obligation of each
WF
Servicer to establish and maintain a Servicer Custodial Account in
accordance
with the applicable Servicing Agreement, with records to be kept
with respect
thereto on a loan by loan basis, into which accounts shall be
deposited within
48 hours (or as of such other time specified in the related
Servicing Agreement)
of receipt all collections of principal and interest on any WF
Master Serviced
Loan and all collections with respect to any REO Property received
by a WF
Servicer, including Principal Prepayments, Insurance Proceeds,
Liquidation
Proceeds, Recoveries and Advances made from the WF Servicer's own
funds (less
servicing compensation as permitted by the applicable Servicing
Agreement in the
case of any WF Servicer) and all other amounts to be deposited in
the WF
Servicer Custodial Account. The WF Master Servicer is hereby
authorized to make
withdrawals from and deposits to the related Servicer Custodial
Account for
purposes required or permitted by this Agreement.
To the extent required by the related Servicing Agreement and by
the
related Mortgage Note and not violative of current law, the WF
Master Servicer
shall require each WF Servicer to establish and maintain one or
more escrow
accounts (for each WF Servicer, collectively, the "WF Escrow
Account") and
deposit and retain therein all collections from the Mortgagors (or
Advances by
such WF Servicer) for the payment of taxes, assessments, hazard
insurance
premiums or comparable items for the account of the Mortgagors.
Nothing herein
shall require the WF Master Servicer to compel a WF Servicer to
establish a WF
Escrow Account in violation of applicable law.
(b) The WMMSC Master Servicer shall cause to be established and
maintained by each WMMSC Servicer under the WMMSC Master Servicer's
supervision
a Servicer Custodial Account and one or more escrow accounts (the
"WMMSC Escrow
Accounts") and shall deposit or cause to be deposited therein daily
the amounts
related to the WMMSC Master Serviced Loans required by the
Servicing Contracts
to be so deposited. The WMMSC Master Servicer or the WMMSC Servicer
shall
deposit in the applicable WMMSC Escrow Account on a daily basis all
Escrow
Payments received by it. Proceeds received with respect to
individual Mortgage
Loans from any title, hazard, or FHA insurance policy, VA guaranty,
Primary
Mortgage Insurance Policy or other insurance policy covering such
WMMSC Master
Serviced Loans, if required for the restoration or repair of the
related
Mortgaged Property, may be deposited either in the WMMSC Escrow
Account or a
Servicer Custodial Account. Such proceeds, if not required for the
restoration
or repair of the related Mortgaged Property, shall be deposited in
the related
Servicer Custodial Account, and shall be applied to the balances of
the related
WMMSC Master Serviced Loans as payments of interest and principal.
If the WMMSC
Master Servicer discovers that any Servicer Custodial Account or
WMMSC Escrow
Account maintained by a WMMSC Servicer is not maintained with an
institution
meeting the requirements of the first sentence of the definition of
Eligible
Institution, then the WMMSC Master Servicer shall cause such
account to be
transferred to an Eligible Institution within two Business Days of
such
discovery.
The WMMSC Master Servicer is hereby authorized to make
withdrawals
from and to issue drafts against the WMMSC Servicer Custodial
Accounts and the
WMMSC Escrow Accounts for the purposes required or permitted by
this Agreement.
Each WMMSC Servicer Custodial Account and each WMMSC Escrow
Account
shall bear a designation clearly showing the respective interests
of the
applicable WMMSC Servicer, as trustee, and of the WMMSC Master
Servicer, in
substantially one of the following forms:
With respect to the Servicer Custodial Account of a WMMSC
Servicer:
(i) {Servicer's Name}, in trust for Washington Mutual Mortgage
Securities Corp.
or (ii) {Servicer's Name}, as agent, trustee and/or bailee of
principal and
interest custodial account for Washington Mutual Mortgage
Securities Corp. and
its successors and assigns.
With respect to the WMMSC Escrow Account: (i) {Servicer's Name},
in
trust for Washington Mutual Mortgage Securities Corp. or (ii)
{Servicer's Name},
as agent, trustee and/or bailee of taxes and insurance custodial
account for
Washington Mutual Mortgage Securities Corp. and its successors and
assigns.
The WMMSC Master Servicer hereby undertakes to assure remittance
to
the Certificate Account of all amounts relating to the WMMSC Master
Serviced
Loans that have been collected by any WMMSC Servicer and are due to
the
Certificate Account pursuant to this Agreement.
Funds held in the WMMSC Servicer Custodial Account and the
WMMSC
Escrow Account may, at the WMMSC Master Servicer's option, be
invested in one or
more Permitted Investments which shall in no event mature later
than the
Business Day prior to the related Withdrawal Date (except that if
such Permitted
Investments are obligations of or managed by the institution that
maintains such
account, then such Permitted Investment shall mature not later than
such
Withdrawal Date). The WMMSC Master Servicer shall bear any and all
losses
incurred on any investments made with such funds and shall be
entitled to retain
any gains realized on such investments as additional master
servicing
compensation.
Section 3.09 Collection of Mortgage Loan Payments; Master
Servicer
Custodial Accounts and Certificate Account.
(a) The Securities Administrator shall establish and maintain
the
Certificate Account, which shall be deemed to consist of six
sub-accounts. The
Securities Administrator shall, promptly upon receipt, deposit in
the
Certificate Account and retain therein any amounts which are
required to be
deposited in the Certificate Account by the Securities
Administrator.
(b) Each Master Servicer shall establish and maintain a Master
Servicer Custodial Account, which shall be an Eligible Account.
Each Master
Servicer shall, promptly upon receipt, deposit in the related
Master Servicer
Custodial Account and retain therein any amounts which are required
to be
deposited in such Master Servicer Custodial Account by such Master
Servicer.
(c) The WF Master Servicer shall deposit or cause to be
deposited
into the WF Master Servicer Custodial Account, on the same Business
Day of
receipt (except as otherwise specifically provided herein), the
following
payments and collections remitted to the WF Master Servicer by each
WF Servicer
from its respective Servicer Custodial Account pursuant to the
related Servicing
Agreement or otherwise or received by the WF Master Servicer in
respect of the
WF Master Serviced Loans subsequent to the Cut-off Date (other than
in respect
of principal and interest due on the WF Master Serviced Loans on or
before the
Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal of the WF Master
Serviced
Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the WF Master
Serviced
Loans, net
of the related Servicing Fee;
(iii) with respect to each WF Master Serviced Loan, (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 WF Escrow Account
pursuant
to Section 3.08 and (B) any Insurance Proceeds released from an
Escrow
Account;
(iv) any amount required to be deposited by the WF Master
Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the WF Master Servicer Custodial
Account;
(v) any amounts relating to REO Property required to be remitted
by
the
applicable WF Servicer;
(vi) WF Servicer Periodic Advances made by the applicable WF
Servicer
pursuant to the related Servicing Agreement (or, if applicable,
by the WF
Master Servicer or the Trustee pursuant to Section 3.21) and
any
Compensating Interest paid by the applicable WF Servicer pursuant
to the
related
Servicing Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts
and
all WF
Master Serviced Loan Reimbursement Amounts to the extent
received
by the WF
Servicer;
(viii) any Recoveries relating to the WF Master Serviced Loans;
(ix) any other amounts required to be deposited hereunder.
(d) The WMMSC Master Servicer shall deposit or cause to be
deposited
into the WMMSC Master Servicer Custodial Account, on the same
Business Day of
receipt (except as otherwise specifically provided herein), the
following
payments and collections remitted by the WMMSC Servicers or
received by it in
respect of the WMMSC Master Serviced Loans subsequent to the
Cut-off Date (other
than in respect of principal and interest due on the WMMSC Master
Serviced Loans
on or before the Cut-off Date) and the following amounts required
to be
deposited hereunder:
(i) all payments on account of principal of the WMMSC Master
Serviced
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the WMMSC Master
Serviced
Loans, net of the related Servicing Fee;
(iii) with respect to each WMMSC Master Serviced Loan, (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 WMMSC Escrow Account
pursuant
to Section 3.08 and (B) any Insurance Proceeds released from an
WMMSC
Escrow Account;
(iv) any amount required to be deposited by such Master
Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with
respect to the WMMSC Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted
by
the
applicable WMMSC Servicer;
(vi) WMMSC Advances made by the applicable WMMSC Servicer
pursuant
to the
related Servicing Agreement (or, if applicable, by the WMMSC
Master
Servicer
or the Trustee pursuant to Section 3.21) and any Compensating
Interest
paid by the applicable WMMSC Servicer;
(vii) all Purchase Prices, all Substitute Adjustment Amounts and
all
WMMSC
Master Serviced Loan Reimbursement Amounts to the extent received
by
the WMMSC
Servicer;
(viii) any Recoveries relating to the WMMSC Master Serviced
Loans;
and
(ix) any other amounts required to be deposited hereunder.
If a Master Servicer shall deposit any amount not required to
be
deposited, it may at any time withdraw such amount from the
applicable Master
Servicer Custodial Account, any provision herein to the
contrary
notwithstanding. All funds required to be deposited in the Master
Servicer
Custodial Accounts shall be held by the Master Servicers in trust
for the
Certificateholders until disbursed in accordance with this
Agreement or
withdrawn in accordance with Section 3.11.
(e) Each institution at which the WF Master Servicer Custodial
Account and the WMMSC Master Servicer Custodial Account is
maintained shall
invest the funds therein as directed in writing by the related
Master Servicer
in Permitted Investments, which shall mature not later than the
Business Day
next preceding the Distribution Date (except that if such Permitted
Investment
is an obligation of the institution that maintains such account,
then such
Permitted Investment shall mature not later than such Distribution
Date) and, in
each case, shall not be sold or disposed of prior to its maturity.
All such
Permitted Investments shall be made in the name of the Trustee, for
the benefit
of the Certificateholders. All WF Master Servicer Custodial Account
Reinvestment
Income shall be for the benefit of the WF Master Servicer as part
of its master
servicing compensation and shall be remitted to the WF Master
Servicer monthly
as provided herein. All WMMSC Master Servicer Custodial Account
Reinvestment
Income shall be for the benefit of the WMMSC Master Servicer as
part of its
master servicing compensation and shall be remitted to the WMMSC
Master Servicer
monthly as provided herein. The amount of any losses realized in a
Master
Servicer Custodial Account incurred in any such account in respect
of any such
investments shall promptly be deposited by the related Master
Servicer from its
own funds in the related Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is
maintained
shall invest the funds therein if directed in writing by the
Securities
Administrator in Permitted Investments that are obligations of the
institution
that maintains the Certificate Account, which shall mature on the
Distribution
Date and shall not be sold or disposed of prior to its maturity.
All such
Permitted Investments shall be made in the name of the Trustee, for
the benefit
of the Certificateholders. All income and gains net of any losses
realized since
the preceding Distribution Date from Permitted Investments of funds
in the
Certificate Account shall be for the benefit of the Securities
Administrator as
additional compensation and the amount of any losses realized in
the Certificate
Account in respect of any such Permitted Investments shall promptly
be deposited
by the Securities Administrator from its own funds in the
Certificate Account.
(g) The Master Servicers shall give notice to the Depositor,
the
Trustee, the Securities Administrator and the Rating Agencies of
any proposed
change of location of each Master Servicer Custodial Account not
later than 30
days after and not more that 45 days prior to any change thereof.
The Securities
Administrator shall give notice to the Depositor, the Trustee, the
Master
Servicers and the Rating Agencies of any proposed change of the
location of the
Certificate Account maintained by the Securities Administrator not
later than 30
days after and not more than 45 days prior to any change thereof.
The creation
of the Master Servicer Custodial Accounts and the Certificate
Account shall be
evidenced by a certification substantially in the form of Exhibit F
hereto.
(h) The Securities Administrator shall designate each of the
Pooling
REMIC 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 a Master Servicer),
(i) the
Securities Administrator shall, from funds available on deposit in
the
Certificate Account, be deemed to deposit into the Pooling REMIC
Sub-Account all
funds deemed on deposit in the Group REMIC Sub-Accounts and (ii)
immediately
thereafter, from funds deemed on deposit in the Pooling REMIC
Sub-Account, the
Securities Administrator shall be deemed to deposit into the
Upper-Tier
Certificate Sub-Account the Pooling REMIC Distribution Amount.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The WF Master Servicer shall afford and shall enforce the
obligation
of the WF Servicers to afford and the WMMSC Master Servicer shall
afford and
shall enforce the obligation of the WMMSC Servicers to afford, the
Securities
Administrator and the Trustee reasonable access to all records and
documentation
regarding the Mortgage Loans and all accounts, insurance
information and other
matters relating to this Agreement, such access being afforded
without charge,
but only upon reasonable request and during normal business hours
at the office
designated by the related Master Servicer or the applicable
Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account,
the
Master Servicer Custodial Accounts and the Servicer Custodial
Accounts.
(a) The WMMSC Master Servicer is authorized to make withdrawals
from
time to time, from the WMMSC Master Servicer Custodial Account or
the Servicer
Custodial Accounts established by any WMMSC Servicers of amounts
deposited
therein in respect of the Certificates (and, to the extent
applicable, to make
deposits of the amounts withdrawn), as follows:
(i) To reimburse itself or the applicable WMMSC Servicer for
WMMSC
Advances
made pursuant to Section 3.21 or a Servicing Contract, as
applicable, such right to reimbursement pursuant to this paragraph
(i)
being
limited to amounts received on particular Mortgage Loans
(including,
for this
purpose, Insurance Proceeds and Liquidation Proceeds) which
represent
late recoveries of principal and/or interest respecting which
any such
WMMSC Advance was made;
(ii) To reimburse itself or the applicable WMMSC Servicer for
amounts
expended by or for the account of the WMMSC Master Servicer
pursuant
to Section 3.15 or amounts expended by such WMMSC Servicer
pursuant
to the Servicing Contracts in connection with the restoration
of
property
damaged by an Uninsured Cause or in connection with the
liquidation of a Mortgage Loan;
(iii) To pay to itself, with respect to the related WMMSC
Master
Serviced
Loans, the WMMSC Master Servicing Fee to which it is entitled
to
pursuant
to Section 3.18 (net of Compensating Interest reduced by Payoff
Earnings
and Payoff Interest) as to which no prior withdrawals from
funds
deposited
by the WMMSC Master Servicer have been made;
(iv) To reimburse itself or the applicable WMMSC Servicer for
advances
made with respect to related WMMSC Mortgage Loans (except for
WMMSC
Mortgage Loans purchased pursuant to a Purchase Obligation or
pursuant
to the second sentence of the third paragraph of Section
3.01(b))
which the WMMSC
Master Servicer has determined to be Nonrecoverable
Advances,
such reimbursement pursuant to this clause (iv) being made
first
from
amounts received on the WMMSC Mortgage Loans in the same Loan
Group
as the
Mortgage Loan in respect of which such Nonrecoverable Advance
was
made;
(v) To pay itself any WMMSC Master Servicer Custodial Account
Reinvestment Income;
(vi) To reimburse itself for expenses incurred by and
reimbursable
to it
pursuant to Section 7.03;
(vii) To remit to the Securities Administrator for deposit in
the
Certificate Account, not later than the related Remittance Date,
the
amounts in
the WMMSC Master Servicer Custodial Account specified in
Section
3.09(d);
(viii) To clear and terminate the WMMSC Master Servicer
Custodial
Account
and following termination of this Agreement pursuant to Section
10.01.
If the WMMSC Master Servicer fails to remit the funds described
in
Section 3.11(a)(vii) above to the Securities Administrator on the
applicable
Remittance Date (not considering any cure period afforded to the
WMMSC Master
Servicer for such remittance under Section 8.01(a)), the WMMSC
Master Servicer
shall pay to the Securities Administrator, for its own account,
interest accrued
on such funds at the prime rate as set forth in The Wall Street
Journal from and
including the applicable Remittance Date to but excluding the day
such funds are
paid to the Securities Administrator.
Since, in connection with withdrawals pursuant to paragraphs (i)
and
(ii), the WMMSC Master Servicer's entitlement thereto is limited to
collections
or other recoveries on the related Mortgage Loan, the WMMSC Master
Servicer or
the applicable WMMSC Servicer shall keep and maintain separate
accounting for
each WMMSC Mortgage Loan, for the purpose of justifying any such
withdrawals.
(b) The Securities Administrator shall withdraw funds from the
Certificate Account to reimburse the Depositor for expenses
incurred by it and
reimbursable pursuant to this Agreement, including but not limited
to, Section
7.03, to pay itself and the Trustee any amounts due itself or the
Trustee under
this Agreement (including, but not limited to, the Securities
Administrator Fee
and all amounts provided for under Section 9.11, other than the
amounts provided
for in the first sentence of Section 9.11) and for distributions
to
Certificateholders in the manner specified in this Agreement. In
addition, the
WF Master Servicer may from time to time make withdrawals from the
WF Master
Servicer Custodial Account for the following purposes:
(i) to pay to the WF Servicers (to the extent not previously
retained
by them), the Servicing Fee to which they are entitled pursuant
to the
Servicing Agreements and to pay itself any WF Master Servicer
Custodial
Account Reinvestment Income;
(ii) [Reserved];
(iii) to reimburse the WF Servicers (or, if applicable, itself
or
the
Trustee) for unreimbursed Advances made pursuant to the related
Servicing
Agreement (or in the case of itself or the Trustee, pursuant to
Section
3.21), such right of reimbursement pursuant to this clause
(iii)
being limited
first to amounts received on the Mortgage Loans serviced by
such WF
Servicer in the related Loan Group in respect of which any such
Advance
was made and then limited to amounts received on all the
Mortgage
Loans
serviced by such Servicer;
(iv) to reimburse the WF Servicers (or, if applicable, itself or
the
Trustee)
for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to
amounts
received
on the WF Master Serviced Loans serviced by such Servicer in
the
same Loan
Group as the Mortgage Loan(s) in respect of which such
Nonrecoverable Advance was made and then limited to amounts
received on
all the
Mortgage Loans serviced by such Servicer;
(v) to reimburse the WF Servicers for Insured Expenses from the
related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02, 2.04,
2.09
or
3.15(g), all amounts received thereon after the date of such
purchase;
(vii) to reimburse itself for expenses incurred by it and
reimbursable pursuant to this Agreement, including but not limited
to,
Section
7.03;
(viii) to withdraw any amount deposited in the WF Master
Servicer
Custodial
Account and not required to be deposited therein; and
(ix) to clear and terminate the WF Master Servicer Custodial
Account
upon
termination of this Agreement pursuant to Section 10.01.
If a Master Servicer shall remit to the Securities Administrator
any
amount not required to be remitted, it may at any time direct the
Securities
Administrator to withdraw such amount from the Certificate Account,
any
provision herein to the contrary notwithstanding. Such direction
may be
accomplished by delivering an Officer's Certificate to the
Securities
Administrator which describes the amounts remitted in error to the
Securities
Administrator for deposit to the Certificate Account. In no event
shall the
Securities Administrator incur liability for withdrawals from the
Certificate
Account at the direction of either Master Servicer.
(c) Each Servicer and each Master Servicer is authorized to
make
withdrawals, from time to time, from the related Servicer Custodial
Account or
related Master Servicer Custodial Account, (i) to pay to itself,
with respect to
the related Mortgage Loans, the Servicing Fee and (ii) to reimburse
itself for
expenses to the same extent that the WMMSC Master Servicer is
authorized to make
withdrawals to reimburse the applicable WMMSC Servicer for expenses
pursuant to
clauses (i), (ii) and (iv) of Section 3.11(a), in the case of each
of clause (i)
and (ii) of this Section 3.11(c), to the extent no prior
withdrawals of such
amounts have been made by the related Servicer or the related
Master Servicer.
(d) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be on deposit in the Group REMIC Sub-Accounts
shall be
used to make payments on the Class 1-A-LR Certificate in respect of
the Group
REMICs as provided in Sections 5.01 and 5.02. On each Distribution
Date, funds
on deposit in the Certificate Account and deemed to be on deposit
in the Pooling
REMIC Sub-Account shall be used to make payments on the Class
1-A-LR Certificate
in respect of the Pooling REMIC as provided in Sections 5.01 and
5.02. On each
Distribution Date, funds on deposit in the Certificate Account and
deemed to be
on deposit in the Upper-Tier Certificate Sub-Account shall be used
to make
payments on the Regular Certificates 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 and Other
Insurance.
(a) For each WF Master Serviced Loan, the WF Master Servicer
shall
enforce any obligation of the WF Servicers under the related
Servicing
Agreements to maintain or cause to be maintained fire, flood and
hazard
insurance with extended coverage customary in the area where the
Mortgaged
Property is located in accordance with the related Servicing
Agreements. It is
understood and agreed that such insurance provided for in this
Section 3.12
shall be with insurers meeting the eligibility requirements set
forth in the
applicable Servicing Agreement and that no earthquake or other
additional
insurance is to be required of any Mortgagor or to be maintained on
property
acquired in respect of a defaulted loan, other than pursuant to
such applicable
laws and regulations as shall at any time be in force and as shall
require such
additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
WF
Master Servicer, or by any WF Servicer, under any insurance
policies (other than
amounts to be applied to the restoration or repair of the property
subject to
the related Mortgage or released to the Mortgagor in accordance
with the
applicable Servicing Agreement) shall be deposited into the
applicable Master
Servicer Custodial Account, subject to withdrawal pursuant to
Sections 3.09 and
3.11. Any cost incurred by the WF Master Servicer or any WF
Servicer in
maintaining any such insurance if the Mortgagor defaults in its
obligation to do
so shall be added to the amount owing under the WF Master Serviced
Loan where
the terms of the WF Master Serviced Loan so permit; provided,
however, that the
addition of any such cost shall not be taken into account for
purposes of
calculating the distributions to be made to Certificateholders and
shall be
recoverable by the WF Master Servicer or such WF Servicer pursuant
to Sections
3.08 and 3.09.
(b) WMMSC Master Servicer shall cause to be maintained for each
WMMSC Master Serviced Loan (other than a Cooperative Loan) fire
insurance with
extended coverage in an amount which is not less than the original
principal
balance of such WMMSC Master Serviced Loan, except in cases
approved by the
WMMSC Master Servicer in which such amount exceeds the value of the
improvements
to the Mortgaged Property. The WMMSC Master Servicer shall also
require fire
insurance with extended coverage in a comparable amount on property
acquired
upon foreclosure, or deed in lieu of foreclosure, of any WMMSC
Master Serviced
Loan (other than a Cooperative Loan). Any amounts collected under
any such
policies (other than amounts to be applied to the restoration or
repair of the
related Mortgaged Property) shall be deposited into the related
Servicer
Custodial Account, subject to withdrawal pursuant to Sections 3.09
and 3.11. Any
unreimbursed costs incurred in maintaining any insurance described
in this
Section 3.12 shall be recoverable as an Advance by the WMMSC Master
Servicer
from the WMMSC Master Servicer Custodial Account or the Certificate
Account.
Such insurance shall be with insurers approved by the WMMSC Master
Servicer and
FNMA or FHLMC. Other additional insurance may be required of a
Mortgagor, in
addition to that required pursuant to such applicable laws and
regulations as
shall at any time be in force and as shall require such additional
insurance.
Where any part of any improvement to the Mortgaged Property (other
than a
Mortgaged Property secured by a Cooperative Loan) is located in a
federally
designated special flood hazard area and in a community which
participates in
the National Flood Insurance Program at the time of origination of
the related
WMMSC Master Serviced Loan, the WMMSC Master Servicer shall cause
flood
insurance to be provided. The hazard insurance coverage required by
this Section
3.12 may be met with blanket policies providing protection
equivalent to
individual policies otherwise required. The WMMSC Master Servicer
shall be
responsible for paying any deductible amount on any such blanket
policy. The
WMMSC Master Servicer agrees to present, or cause to be presented,
on behalf of
and for the benefit of the Trust, claims under the hazard insurance
policy
respecting any WMMSC Master Serviced Loan, and in this regard to
take such
reasonable actions as shall be necessary to permit recovery under
such policy.
Section 3.13 Presentment of Claims and Collection of Proceeds.
The WF Master Servicer shall (to the extent provided in the
applicable Servicing Agreement) cause the related WF Servicer to
prepare and
present on behalf of the Trustee and the Certificateholders all
claims under the
Insurance Policies and take such actions (including the
negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be
necessary to
realize recovery under such policies. Any proceeds disbursed to the
WF Master
Servicer (or disbursed to a WF Servicer and remitted to the WF
Master Servicer)
in respect of such policies, bonds or contracts shall be promptly
deposited in
the WF Master Servicer Custodial Account upon receipt, except that
any amounts
realized that are to be applied to the repair or restoration of the
related
Mortgaged Property as a condition precedent to the presentation of
claims on the
related Mortgage Loan to the insurer under any applicable Insurance
Policy need
not be so deposited (or remitted).
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a)
To the extent provided in the applicable Servicing Agreement
and
to the extent WF Master Serviced Loans contain enforceable
due-on-sale clauses,
the WF Master Servicer shall cause the WF Servicers to enforce such
clauses in
accordance with the applicable Servicing Agreement. If applicable
law prohibits
the enforcement of a due-on-sale clause or such clause is otherwise
not enforced
in accordance with the applicable Servicing Agreement, and, as a
consequence, a
WF Master Serviced Loan is assumed, the original Mortgagor may be
released from
liability in accordance with the applicable Servicing
Agreement.
(b) When any Mortgaged Property securing a WMMSC Master
Serviced
Loan is about to be conveyed by the Mortgagor, the WMMSC Master
Servicer shall,
to the extent it has knowledge of such prospective conveyance and
prior to the
time of the consummation of such conveyance, exercise on behalf of
the Trust the
Trust's rights to accelerate the maturity of such WMMSC Master
Serviced Loan, to
the extent that such acceleration is permitted by the terms of the
related
Mortgage Note, under any "due-on-sale" clause applicable thereto;
provided,
however, that the WMMSC Master Servicer shall not exercise any such
right if the
due-on-sale clause, in the reasonable belief of the WMMSC Master
Servicer, is
not enforceable under applicable law or if such exercise would
result in
non-coverage of any resulting loss that would otherwise be covered
under any
insurance policy. In the event the WMMSC Master Servicer is
prohibited from
exercising such right, the WMMSC Master Servicer is authorized to
take or enter
into an assumption and modification agreement from or with the
Person to whom a
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 or unless the Mortgage Note contains a
provision allowing a
qualified borrower to assume the Mortgage Note, the Mortgagor
remains liable
thereon; provided that the WMMSC Master Serviced Loan shall
continue to be
covered (if so covered before the WMMSC Master Servicer enters such
agreement)
by any related Primary Mortgage Insurance Policy. The WMMSC Master
Servicer is
also authorized 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. The WMMSC Master Servicer shall not enter into any
substitution or
assumption with respect to a WMMSC Master Serviced Loan if such
substitution or
assumption shall (i) both constitute a "significant modification"
effecting an
exchange or reissuance of such WMMSC Master Serviced Loan under the
Code (or
Treasury regulations promulgated thereunder) and cause any REMIC
created
hereunder to fail to qualify as a REMIC under the REMIC Provisions,
(ii) cause
the imposition of any tax on "prohibited transactions" or
"contributions" after
the startup day under the REMIC Provisions or (iii) change the
applicable
Mortgage Interest Rate. The WMMSC Master Servicer shall notify the
Trustee that
any such substitution or assumption agreement has been completed
and shall
forward to the Custodian the original copy of such substitution or
assumption
agreement and other documents and instruments constituting a part
thereof. In
connection with any such assumption or substitution agreement, the
terms of the
related Mortgage Note shall not be changed. Any fee collected by
the applicable
WMMSC Servicer for entering into an assumption or substitution of
liability
agreement shall be retained by such WMMSC Servicer as additional
servicing
compensation.
Notwithstanding the foregoing paragraph or any other provision
of
this Agreement, the WMMSC Master Servicer shall not be deemed to be
in default,
breach or any other violation of its obligations hereunder by
reason of any
assumption of a WMMSC Master Serviced Loan by operation of law or
any assumption
which the WMMSC Master Servicer may be restricted by law from
preventing, for
any reason whatsoever.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The WF Master Servicer shall cause each WF Servicer (to the
extent required under the related Servicing Agreement) to foreclose
upon or
otherwise comparably convert the ownership of Mortgaged Properties
securing such
of the WF Master Serviced Loans as come into and continue in
default and as to
which no satisfactory arrangements can be made for collection of
delinquent
payments, all in accordance with the applicable Servicing
Agreement.
(b) The WMMSC Master Servicer shall foreclose upon or otherwise
comparably convert, or cause to be foreclosed upon or comparably
converted, the
ownership of any Mortgaged Property securing a WMMSC Master
Serviced Loan which
comes into and continues in default and as to which no satisfactory
arrangements
can be made for collection of delinquent payments pursuant to
Section 3.01. In
lieu of such foreclosure or other conversion, and taking into
consideration the
desirability of maximizing net Liquidation Proceeds after taking
into account
the effect of Insurance Proceeds upon Liquidation Proceeds, the
WMMSC Master
Servicer may, to the extent consistent with prudent mortgage loan
servicing
practices, accept a payment of less than the outstanding Stated
Principal
Balance of a delinquent WMMSC Master Serviced Loan in full
satisfaction of the
indebtedness evidenced by the related Mortgage Note and release the
lien of the
related Mortgage upon receipt of such payment. The WMMSC Master
Servicer shall
not foreclose upon or otherwise comparably convert a Mortgaged
Property if the
WMMSC Master Servicer is aware of evidence of toxic waste, other
hazardous
substances or other evidence of environmental contamination thereon
and the
WMMSC Master Servicer determines that it would be imprudent to do
so. In
connection with such foreclosure or other conversion, the WMMSC
Master Servicer
shall cause to be followed such practices and procedures as it
shall deem
necessary or advisable and as shall be normal and usual in general
mortgage
servicing activities. The foregoing is subject to the provision
that, in the
case of damage to a Mortgaged Property from an Uninsured Cause, the
WMMSC Master
Servicer shall not be required to advance its own funds towards the
restoration
of the property unless it shall be determined in the sole judgment
of the WMMSC
Master Servicer, (i) that such restoration will increase the
proceeds of
liquidation of the Mortgage Loan to Certificateholders after
reimbursement to
itself for such expenses, and (ii) that such expenses will be
recoverable to it
through Liquidation Proceeds. The WMMSC Master Servicer shall be
responsible for
all other costs and expenses incurred by it in any such
proceedings; provided,
however, that it shall be entitled to reimbursement thereof (as
well as its
normal servicing compensation) as an Advance. The WMMSC Master
Servicer shall
maintain information required for tax reporting purposes regarding
any Mortgaged
Property securing a WMMSC Master Serviced Loan which is abandoned
or which has
been foreclosed or otherwise comparably converted. The WMMSC Master
Servicer
shall report such information to the Internal Revenue Service and
the Mortgagor
in the manner required by applicable law.
(c) With respect to any REO Property, the deed or certificate
of
sale shall be taken in the name of the Trust for the benefit of
the
Certificateholders, or its nominee, on behalf of the
Certificateholders. The WF
Master Servicer shall enforce the obligation of the WF Servicers,
to the extent
provided in the applicable Servicing Agreement, to (i) cause the
name of the
Trust to be placed on the title to such REO Property and (ii)
ensure that the
title to such REO Property references this Agreement. The WF Master
Servicer
shall, to the extent provided in the applicable Servicing
Agreement, cause the
applicable WF Servicer to sell any REO Property as expeditiously as
possible and
in accordance with the provisions of this Agreement and the related
Servicing
Agreement, as applicable. Pursuant to its efforts to sell such REO
Property, the
WF Master Servicer shall cause the applicable Servicer to protect
and conserve
such REO Property in the manner and to the extent required by the
applicable
Servicing Agreement, subject to the REMIC Provisions. In the event
that the
Trust Estate acquires any Mortgaged Property as aforesaid or
otherwise in
connection with a default or imminent default on a WF Master
Serviced Loan, the
WF Master Servicer shall enforce the obligation of the related WF
Servicer to
dispose of such Mortgaged Property within the time period specified
in the
applicable Servicing Agreement unless the WF Servicer shall have
applied for and
received an extension of such period from the Internal Revenue
Service, in which
case the Trust Estate may continue to hold such Mortgaged Property
for the
period of such extension.
In the event that the Trust acquires any real property (or
personal
property incident to such real property) in connection with a
default or
imminent default of a WMMSC Master Serviced Loan or any REO
Property relating to
a WMMSC Master Serviced Loan, such property shall be disposed of by
the WMMSC
Master Servicer as soon as practicable in a manner that, consistent
with prudent
mortgage loan servicing practices, maximizes the net present value
of the
recovery to the Trust, but in any event within three years after
its acquisition
by the WMMSC Master Servicer for the Trust (such period, the "REO
Disposition
Period") unless the WMMSC Master Servicer provides to the Trustee
and the
Securities Administrator an Opinion of Counsel to the effect that
the holding by
the Trust of such Mortgaged Property subsequent to three years
after its
acquisition will not result in the imposition of taxes on
"prohibited
transactions" of the Trust as defined in Section 860F of the Code
or under the
law of any state in which real property securing a WMMSC Master
Serviced Loan
owned by the Trust is located or cause the applicable REMIC to fail
to qualify
as a REMIC for federal income tax purposes or for state tax
purposes under the
laws of any state in which real property securing a WMMSC Master
Serviced Loan
owned by the Trust is located at any time that any Certificates are
outstanding.
The WMMSC Master Servicer shall either itself or through an agent
selected by
the WMMSC Master Servicer protect and conserve such property in the
same manner
and to such extent as is customary in the locality where such
property is
located and may, incident to its conservation and protection of the
assets of
the Trust, rent the same, or any part thereof, as the WMMSC Master
Servicer
deems to be in the best interest of the WMMSC Master Servicer and
the Trust for
the period prior to the sale of such property. Additionally, the
WMMSC Master
Servicer shall perform the tax withholding and shall file
information returns
with respect to the receipt of mortgage interests received in a
trade or
business, the reports of foreclosures and abandonments of any
Mortgaged Property
and the information returns relating to cancellation of
indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J
and 6050P,
respectively, of the Code. Such reports shall be in form and
substance
sufficient to meet the reporting requirements imposed by Sections
6050H, 6050J
and 6050P of the Code.
(d) The WF Master Servicer shall, to the extent required by the
related Servicing Agreement, cause the applicable Servicer to
deposit all funds
collected and received in connection with the operation of any REO
Property in
the Servicer Custodial Account.
(e) The applicable WF Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related
unreimbursed
Advances (other than WF Servicer Servicing Advances) and other
unreimbursed
advances as well as any unpaid Servicing Fees from Liquidation
Proceeds received
in connection with the final disposition of such REO Property;
provided that any
such unreimbursed Advances (other than WF Servicer Servicing
Advances) as well
as any unpaid Servicing Fees may be reimbursed or paid, as the case
may be,
prior to final disposition, out of any net rental income or other
net amounts
derived from such REO Property.
(f) The Liquidation Proceeds from the final disposition of the
REO
Property, net of any payment to the applicable WF Servicer as
provided above
shall be deposited in the related Servicer Custodial Account on or
prior to the
Determination Date in the month following receipt thereof and be
remitted by
wire transfer in immediately available funds to the related WF
Servicer for
deposit into the related Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, neither
Master Servicer shall permit any Mortgaged Property acquired by the
Trust to be
rented (or allowed to continue to be rented) or otherwise used for
the
production of income by or on behalf of the Trust in such a manner
or pursuant
to any terms that would (i) cause such Mortgaged Property to fail
to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of
the Code,
(ii) result in the receipt by any REMIC if any "income from
non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or
any "net
income from foreclosure property" which is subject to taxation
under the REMIC
Provisions or (iii) subject 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
related
Master Servicer or related Servicer, as applicable, has agreed to
indemnify and
hold harmless the Trust with respect to the imposition of any such
taxes.
Notwithstanding any other provision of this Agreement, the
Master
Servicers and the Securities Administrator, as applicable, shall
comply with all
federal withholding requirements with respect to payments to
Certificateholders
of interest or original issue discount that the Master Servicers or
the
Securities Administrator reasonably believes are applicable under
the Code. The
consent of Certificateholders shall not be required for any such
withholding.
Without limiting the f
