EXHIBIT 4.1
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BANC OF AMERICA FUNDING CORPORATION,
as Depositor
WELLS FARGO BANK, N.A.,
as Master Servicer and as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated June 30, 2005
----------
Mortgage Pass-Through Certificates
Series 2005-D
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TABLE OF CONTENTS
Page
----
PRELIMINARY
STATEMENT..........................................................1
ARTICLE I
DEFINITIONS
Section 1.01
Defined Terms...................................................2
Section 1.02
Calculations...................................................23
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans...................................23
Section 2.02
Acceptance by the Trustee of the Mortgage Loans................27
Section 2.03
Representations, Warranties and Covenants of the Master
Servicer....................................................31
Section 2.04
Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................32
Section 2.05
Designation of Interests in the REMICs.........................33
Section 2.06
Designation of Start-up Day....................................33
Section 2.07
REMIC Certificate Maturity Date................................33
Section 2.08
Execution and Delivery of Certificates.........................33
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01
Master Servicing of the Mortgage Loans.........................33
Section 3.02
Monitoring of the Servicer.....................................34
Section 3.03
Fidelity Bond; Errors and Omissions Insurance..................35
Section 3.04
Access to Certain Documentation................................35
Section 3.05
Maintenance of Primary Mortgage Insurance Policy; Claims.......35
Section 3.06
Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer.......... 36
Section 3.07
Trustee to Act as Master Servicer..............................36
Section 3.08
Servicer Custodial Account.....................................36
Section 3.09
Collection of Mortgage Loan Payments; Master Servicer
Custodial Account, Servicer Custodial Account,
Distribution Account and Reserve Account....................37
Section 3.10
Collection of Taxes, Assessments and Similar Items;
Escrow Account..............................................39
Section 3.11
Access of Securities Administrator and Trustee to
Certain Documentation and Information Regarding the
Mortgage Loans..............................................39
Section 3.12
Permitted Withdrawals from the Master Servicer Custodial
Account and the Distribution Account........................39
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Section 3.13
Maintenance of Hazard Insurance and Other Insurance............40
Section 3.14
Presentment of Claims and Collection of Proceeds...............41
Section 3.15
Enforcement of Due-On-Sale Clauses; Assumption Agreements......41
Section 3.16
Realization Upon Defaulted Mortgage Loans; REO Property........41
Section 3.17
Trustee to Cooperate; Release of Mortgage Files................43
Section 3.18
Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.........................44
Section 3.19
Master Servicer Compensation...................................44
Section 3.20
Annual Statement as to Compliance..............................44
Section 3.21
Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................45
Section 3.22
Advances.......................................................45
Section 3.23
Reports to the Securities and Exchange Commission..............45
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01
Master Servicer's Certificate..................................47
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; REMIC ADMINISTRATION
Section 5.01
Distributions..................................................48
Section 5.02
Priorities of Distributions....................................48
Section 5.03
Allocation of Losses...........................................51
Section 5.04
Statements to Certificateholders...............................52
Section 5.05
Tax Returns and Reports to Certificateholders..................55
Section 5.06
Tax Matters Person.............................................55
Section 5.07
Rights of the Tax Matters Person in Respect of the
Securities Administrator....................................55
Section 5.08
REMIC Related Covenants........................................56
Section 5.09
Master Servicer, Securities Administrator and Trustee
Indemnification.............................................57
ARTICLE VI
THE CERTIFICATES
Section 6.01
The Certificates...............................................58
Section 6.02
Registration of Transfer and Exchange of Certificates..........59
Section 6.03
Mutilated, Destroyed, Lost or Stolen Certificates..............63
Section 6.04
Persons Deemed Owners..........................................63
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ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01
Respective Liabilities of the Depositor and the Master
Servicer....................................................64
Section 7.02
Merger or Consolidation of the Depositor or the Master
Servicer....................................................64
Section 7.03
Limitation on Liability of the Depositor, the Master
Servicer and Others.........................................64
Section 7.04
Depositor and Master Servicer Not to Resign....................65
ARTICLE VIII
DEFAULT
Section 8.01
Events of Default..............................................65
Section 8.02
Remedies of Trustee............................................67
Section 8.03
Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................67
Section 8.04
Action upon Certain Failures of the Master Servicer and
upon Event of Default.......................................67
Section 8.05
Trustee to Act; Appointment of Successor.......................67
Section 8.06
Notification to Certificateholders.............................68
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01
Duties of Trustee and Securities Administrator.................69
Section 9.02
Certain Matters Affecting the Trustee and the Securities
Administrator...............................................70
Section 9.03
Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans..............................72
Section 9.04
Trustee and Securities Administrator May Own Certificates......73
Section 9.05
Eligibility Requirements for Trustee and the Securities
Administrator...............................................73
Section 9.06
Resignation and Removal of Trustee and the Securities
Administrator...............................................74
Section 9.07
Successor Trustee or Securities Administrator..................75
Section 9.08
Merger or Consolidation of Trustee or Securities
Administrator...............................................75
Section 9.09
Appointment of Co-Trustee or Separate Trustee..................76
Section 9.10
Authenticating Agents..........................................77
Section 9.11
Securities Administrator's Fees and Expenses and
Trustee's Expenses..........................................77
Section 9.12
Appointment of Custodian.......................................78
Section 9.13
Paying Agents..................................................78
Section 9.14
Limitation of Liability........................................79
Section 9.15
Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates..........................79
Section 9.16
Suits for Enforcement..........................................80
Section 9.17
Waiver of Bond Requirement.....................................80
Section 9.18
Waiver of Inventory, Accounting and Appraisal
Requirement.................................................80
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ARTICLE X
TERMINATION
Section 10.01
Termination upon Purchase or Liquidation of All Mortgage
Loans.......................................................80
Section 10.02
Additional Termination Requirements............................82
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment......................................................83
Section 11.02
Recordation of Agreement; Counterparts.........................84
Section 11.03
Limitation on Rights of Certificateholders.....................84
Section 11.04
Governing Law..................................................85
Section 11.05
Notices........................................................85
Section 11.06
Severability of Provisions.....................................86
Section 11.07
Certificates Nonassessable and Fully Paid......................86
Section 11.08
Access to List of Certificateholders...........................86
Section 11.09
Recharacterization.............................................87
Section 11.10
Third Party Beneficiary........................................87
EXHIBITS
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Exhibit A-1
Form of Face of Class A-1 Certificate
Exhibit A-2
Form of Face of Class A-2 Certificate
Exhibit A-R
Form of Face of Class A-R Certificate
Exhibit B-1
Form of Face of Class B-1 Certificate
Exhibit B-2
Form of Face of Class B-2 Certificate
Exhibit B-3
Form of Face of Class B-3 Certificate
Exhibit B-4
Form of Face of Class B-4 Certificate
Exhibit B-5
Form of Face of Class B-5 Certificate
Exhibit B-6
Form of Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates
Exhibit D
Mortgage Loan Schedule
Exhibit E
Form of Request for Release
Exhibit F
Form of Certification of Establishment of Account
Exhibit G-1
Form of Transferor's Certificate
Exhibit G-2A
Form I of Transferee's Certificate
Exhibit G-2B
Form II of Transferee's Certificate
Exhibit H
Form of Transferee Representation Letter for ERISA Restricted
Certificates
Exhibit I
Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit J
List of Recordation States
Exhibit K
Form of Initial Certification
Exhibit L
Form of Final Certification
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Exhibit M
Form of Sarbanes-Oxley Certification
Exhibit N
Form of Securities Administrator's Certification
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated June 30, 2005 is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as
depositor
(together with its permitted successors and assigns, the
"Depositor"), WELLS
FARGO BANK, N.A., as master servicer (in such capacity, together
with its
permitted successors and assigns, the "Master Servicer") and as
securities
administrator (in such capacity, together with its permitted
successors and
assigns, the "Securities Administrator") and WACHOVIA BANK,
NATIONAL
ASSOCIATION, as trustee (together with its permitted successors and
assigns, the
"Trustee").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and
the Trustee
agree as follows:
PRELIMINARY STATEMENT
The Trust Estate will be treated as a real estate mortgage
investment
conduit within the menaing of Section 860D of the Code for United
States federal
income tax purposes (the "REMIC"). The Certificates (other than the
Class A-R
Certificate) shall constitute "regular interests" in the REMIC for
purposes of
the REMIC Provisions. The Class A-R Certificate shall represent the
single
"residual interest" in the REMIC for puposes of the REMIC
Provisions. The
Certificates will represent the entire beneficial ownership
interest in the
Trust. The "latest possible maturity date" for United States
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:
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Integral
Pass-
Multiples
Initial Class
Through
Minimum
in Excess
Classes
Certificate Balance
Rate
Denomination
of Minimum
--------------------------------------------------------------------------------
Class A-1
$1,000,000,000.00
(1)
$ 1,000
$1
--------------------------------------------------------------------------------
Class A-2
$
57,066,000.00
(1)
$ 1,000
$1
--------------------------------------------------------------------------------
Class A-R
$
100.00
(1)
$
100
N/A
--------------------------------------------------------------------------------
Class B-1
$
17,391,000.00
(1)
$25,000
$1
--------------------------------------------------------------------------------
Class B-2
$
4,892,000.00
(1)
$25,000
$1
--------------------------------------------------------------------------------
Class B-3
$
2,717,000.00
(1)
$25,000
$1
--------------------------------------------------------------------------------
Class B-4
$
2,174,000.00
(1)
$25,000
$1
--------------------------------------------------------------------------------
Class B-5
$
1,630,000.00
(1)
$25,000
$1
--------------------------------------------------------------------------------
Class B-6
$
1,087,911.00
(1)
$25,000
$1
--------------------------------------------------------------------------------
(1)
For each Distribution Date, interest will accrue on these
Certificates at a
per annum rate equal to the Net WAC Rate.
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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
Class
of Certificates, one month's interest accrued during the related
Interest
Accrual Period at the applicable Pass-Through Rate on the related
Class
Certificate Balance.
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-off Date Pool Principal Balance of the Mortgage Loans minus the
sum of (i)
all amounts in respect of principal received in respect of the
Mortgage Loans
(including, without limitation, amounts received as Monthly
Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and
Substitution
Adjustment Amounts) and distributed to Holders of the Certificates
on such
Distribution Date and all prior Distribution Dates and (ii) the
principal
portion of all Realized Losses (other than Debt Service Reductions)
incurred on
the Mortgage Loans from the Cut-off Date through the end of the
month preceding
such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Adverse REMIC Event: As defined in Section 5.08.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal
obtained by the
originator at origination of such Mortgage Loan or, in certain
cases, an
automated valuation model or tax assessed value and (b) the sales
price for such
property, except that, in the case of Mortgage Loans the proceeds
of which were
used to refinance an existing mortgage loan, the Appraised Value of
the related
Mortgaged Property is the appraised value thereof determined in an
appraisal
obtained at the time of refinancing or, in certain cases, an
automated valuation
model or tax assessed value, or (ii) the appraised value determined
in an
appraisal made at the request of a Mortgagor subsequent to
origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage
Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form,
sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property
is located
to give record notice of the sale of the Mortgage.
-2-
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor in
interest.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a
day on which banking institutions in the State of North Carolina,
the State of
New York, the State of Minnesota, the State of Maryland, the state
in which the
master servicing offices of the Master Servicer is located or the
states in
which the Corporate Trust Offices of the Trustee and the Securities
Administrator are located are required or authorized by law or
executive order
to be closed.
Calculated Principal Distribution: As defined in Section 5.03(c).
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2005-D that are issued pursuant
to this
Agreement.
Certificate Balance: With respect to any Certificate at any date,
the
maximum dollar amount of principal to which the Holder thereof is
then entitled
hereunder, such amount being equal to the product of the Percentage
Interest of
such Certificate and the Class Certificate Balance of the Class of
Certificates
of which such Certificate is a part.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable to the Depository and
selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate.
With respect to
any Definitive Certificate, the Certificateholder of such
Certificate.
Certificate Register: The register maintained pursuant to Section
6.02.
Certificate Registrar: The registrar appointed pursuant to Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor or the Master Servicer or any affiliate
thereof shall be
deemed not to be outstanding and the Percentage Interest and Voting
Rights
evidenced thereby shall not be taken into account in determining
whether the
requisite amount of Percentage Interests or Voting Rights, as the
case may be,
necessary to effect any such consent has been obtained, unless such
entity is
the registered owner of the entire Class of Certificates, provided
that the
Securities Administrator shall not be responsible for knowing that
any
Certificate is registered in the name of an affiliate of the
Depositor or the
Master Servicer unless one of its Responsible Officers has actual
knowledge
thereof.
-3-
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class A-1, Class A-2, Class A-R,
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 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 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 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 A-2 Certificates with respect to
such
Distribution Date prior to any reduction for the Class A-2 Loss
Allocation
Amount and (b) the Class A-1 Loss Amount with respect to such
Distribution Date.
Class Certificate Balance: With respect to (i) any Class of
Certificates and any date of determination, and subject to Section
5.03(f), the
Initial Class Certificate Balance of such Class minus (A) the sum
of (i) all
distributions of principal made with respect thereto, (ii) all
reductions in
Class Certificate Balance previously allocated thereto pursuant to
Section
5.03(a) and (iii) in the case of the Class A-2 Certificates, any
reduction
allocated thereto pursuant to Section 5.03(d) plus (B) the sum of
(x) all
increases in Class Certificate Balance previously allocated thereto
pursuant to
Section 5.03(a) and (y) in the case of the A-2 Certificates, any
increases
allocated thereto pursuant to Section 5.03(d).
Class Interest Shortfall: For any Distribution Date and each Class
of
Certificates, the amount by which Accrued Certificate Interest for
such Class
(as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually
distributed on such Class on such Distribution Date pursuant to
clause (i) of
the definition of "Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and
each
Class of Certificates, the amount by which the aggregate Class
Interest
Shortfalls for such Class on prior Distribution Dates exceeds the
amount of
interest actually distributed on such Class on such prior
Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution
Amount."
Closing Date: June 30, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of (a) the aggregate Servicing Fee
payable to the
Servicer as of the Due Date in the month preceding the month of
such
Distribution Date and (b) the aggregate Prepayment Interest
Shortfall with
respect to such Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of
this
instrument is located at 401 South Tryon
-4-
Street, Charlotte, North Carolina, 28288-1179 Attention: Structured
Finance
Trust Services, BAFC, Series 2005-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 Servicer. With respect
to the
Securities Administrator, the principal corporate trust office of
the Securities
Administrator at which at any particular time its corporate trust
business with
respect to this Agreement is conducted, which office at the date of
the
execution of this instrument is located at 9062 Old Annapolis Road,
Columbia,
Maryland 21045-1951, Attention: Corporate Trust Services - BAFC
2005-D, and for
certificate transfer purposes is located at Sixth Street and
Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services -
BAFC 2005-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 Servicer.
Custodian: Initially, the Master Servicer, and thereafter the
Custodian, if any, appointed by the Trustee pursuant to Section
9.12. The
Custodian may (but need not) be the Trustee or any Person directly
or indirectly
controlling or controlled by or under common control of either of
them. None of
the Depositor or any Person directly or indirectly controlling or
controlled by
or under common control with the Depositor may be appointed
Custodian.
Customary Servicing Procedures: Procedures (including collection
procedures) that the Servicer customarily employs and exercises in
servicing and
administering mortgage loans for its own account and which are in
accordance
with accepted mortgage servicing practices of prudent lending
institutions
servicing mortgage loans of the same type as the Mortgage Loans in
the
jurisdictions in which the related Mortgaged Properties are
located.
Cut-off Date: June 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date
Principal Balances of the Mortgage Loans, which is
$1,086,958,011.76.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the
Cut-off Date,
reduced by all installments of principal due on or prior thereto
whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the Monthly Payment due on the related Due
Date under
the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of
principal and/or interest required to be paid with respect to such
Due Date by
the Mortgagor as established by a court of competent jurisdiction
(pursuant to
an order which has become final and nonappealable) as a result of a
proceeding
initiated by or against the related Mortgagor under the Bankruptcy
Code, as
amended from time to time (11 U.S.C.); provided that no such excess
shall be
considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an
appeal of the court order giving rise to any such modification and
(b)(1) such
Mortgage Loan is not in default with respect to payment due
thereunder in
accordance with the terms of such Mortgage Loan as in effect on the
Cut-off Date
or (2) Monthly Payments are being advanced by the Servicer in
accordance with
the terms of such Mortgage Loan as in effect on the Cut-off Date.
-5-
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under
such Mortgage
Loan over (ii) the secured valuation thereof established by a court
of competent
jurisdiction (pursuant to an order which has become final and
nonappealable) as
a result of a proceeding initiated by or against the related
Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant
to which
such Mortgagor retained such Mortgaged Property; provided that no
such excess
shall be considered a Deficient Valuation so long as (a) the
Servicer is
pursuing an appeal of the court order giving rise to any such
modification and
(b)(1) such Mortgage Loan is not in default with respect to
payments due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the
Servicer in
accordance with the terms of such Mortgage Loan as in effect on the
Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the
Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede
& Co., as the registered Holder of the Book-Entry Certificates
or any successor
thereto appointed in accordance with this Agreement. The Depository
shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform
Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository
effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: With respect to any Distribution Date, as
defined
in the Servicing Agreement.
Distribution Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to Section 3.09(c) in the
name of the
Securities Administrator for the benefit of the Certificateholders
and
designated "Wells Fargo Bank, N.A., as Securities Administrator for
Wachovia
Bank, National Association, as Trustee, in trust for registered
holders of Banc
of America Funding Corporation Mortgage Pass-Through Certificates,
Series
2005-D." Funds in the Distribution Account shall be held in trust
for the
Holders of the Certificates for the uses and purposes set forth in
this
Agreement.
Distribution Date: The 25th day of each month beginning in July
2005
(or, if such day is not a Business Day, the next Business Day).
-6-
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 or (ii) the senior, unsecured long-term debt rating of Wells
Fargo &
Company is less than "BBB-" by Fitch.
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 each Rating Agency,
the
Certificateholders have a claim with respect to the funds in such
account or a
perfected first priority security interest against any collateral
(which shall
be limited to Permitted Investments) securing such funds that is
superior to
claims of any other depositors or creditors of the depository
institution or
trust company in which such account is maintained, or (iii) a trust
account or
accounts maintained with the trust department of a federal or state
chartered
depository institution or trust company (including the Trustee and
the
Securities Administrator), acting in its fiduciary capacity or (iv)
any other
account acceptable to each Rating Agency. Eligible Accounts may
bear interest
and may include, if otherwise qualified under this definition,
accounts
maintained with the Trustee or the Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class B-4, Class B-5 and
Class B-6 Certificates and any other Regular Certificate that fails
to meet the
ratings requirements of Prohibited Transaction Exemption 2002-41,
67 Fed. Reg.
54487 (August 22, 2002).
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary
Mortgage Insurance Policy premiums, fire and hazard insurance
premiums and other
payments as may be required to be escrowed by the Mortgagor with
the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed
to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan
pursuant to Section 3.12(a)(iv), exceeds (i) the unpaid principal
balance of
such Liquidated Mortgage Loan as of the Due Date in the month in
which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at
the Mortgage Interest Rate from
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the Due Date as to which interest was last paid or for which a
Periodic Advance
was made (and not reimbursed) up to the Due Date applicable to the
Distribution
Date immediately following the calendar month during which such
liquidation
occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant
to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by
written notice to
the Securities Administrator.
Fitch: Fitch Ratings, or any successor thereto.
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(a).
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.
Holder: A Certificateholder.
Incremental Interest: As to any Mortgage Loan, the amount of
interest
accrued on such Mortgage Loan attributable to the Incremental Rate;
provided,
however, that with respect to any payment of interest received in
respect of a
Mortgage Loan (whether paid by the Mortgagor or received as
Liquidation Proceeds
or otherwise) which is less than the full amount of interest then
due with
respect to such Mortgage Loan, only that portion of such payment of
interest
that bears the same relationship to the total amount of such
payment of interest
as the Incremental Rate, if any, in respect of such Mortgage Loan
bears to the
Mortgage Interest Rate shall be allocated to the Incremental
Interest with
respect thereto.
Incremental Rate: Prior to the first Rate Adjustment Date for a
Mortgage Loan, the per annum increase to the initial Mortgage
Interest Rate set
forth in an addendum to the related Mortgage Note, which increase
takes effect
upon the happening of certain specified conditions and remains in
effect until
the first Rate Adjustment Date.
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Independent: When used with respect to any specified Person means
such
a Person who (i) is in fact independent of the Depositor, the
Trustee, the
Securities Administrator, the Master Servicer and the Servicer,
(ii) does not
have any direct financial interest or any material indirect
financial interest
in the Depositor, the Trustee, the Securities Administrator, the
Master Servicer
or the Servicer or in an affiliate of any of them, and (iii) is not
connected
with the Depositor, the Trustee, the Securities Administrator, the
Master
Servicer or the Servicer as an officer, employee, promoter,
underwriter,
trustee, partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, the
One-Year
CMT Index. In the event that such Index is no longer available, the
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 related insurance policy, including all riders
and
endorsements thereto in effect, including any replacement policy or
policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in
such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of
Certificates, the period from and including the first day of the
previous
calendar month to but not including the first day of the calendar
month of the
current Distribution Date. Interest on each Class of Certificates
will be
calculated on the basis of a 360-day year consisting of twelve
30-day months.
Interest Distribution Amount: For any Distribution Date and each
Class
of Certificates, the sum of (i) the Accrued Certificate Interest,
subject to
reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid
Interest
Shortfall for such Class.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
calendar month preceding the month of such Distribution Date and as
to which the
Servicer has certified (in accordance with the Servicing Agreement)
that it has
received all proceeds it expects to receive in connection with the
liquidation
of such Mortgage Loan including the final disposition of an REO
Property.
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
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condemnation or partial release of a Mortgaged Property and any
other proceeds
received in connection with an REO Property, less the sum of
related
unreimbursed Servicing Fees and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of
determination, the fraction, expressed as a percentage, the
numerator of which
is the outstanding principal balance of the related Mortgage Loan
at the date of
determination and the denominator of which is the Appraised Value
of the related
Mortgaged Property.
Master Servicer: Wells Fargo Bank, N.A., and any
successors-in-interest and, if a successor master servicer is
appointed
hereunder, such successor, as master servicer.
Master Servicer Custodial Account: The Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.09(b) in
the name of the
Master Servicer for the benefit of the Certificateholders and
designated "Wells
Fargo Bank, N.A., as Master Servicer, in trust for the registered
holders of
Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series
2005-D."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized
since the
preceding Distribution Date from Permitted Investments of funds in
the Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in Section 3.23(c).
Master Servicer's Certificate: The monthly report required by
Section
4.01.
Master Servicing Officer: With respect to the Master Servicer, any
officer of the Master Servicer involved in, or responsible for, the
administration and master servicing of the Mortgage Loans whose
name appears on
a list of servicing officers furnished to the Securities
Administrator by the
Master Servicer, as such list may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
incurred by the Trustee in connection with the transfer of master
servicing from
a predecessor master servicer, including, without limitation, any
costs or
expenses associated with the complete transfer of all master
servicing data and
the completion, correction or manipulation of such master servicing
data as may
be required by the Trustee to correct any errors or insufficiencies
in the
master servicing data or otherwise to enable the Trustee to master
service the
Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(ii).
Monthly Form 8-K: As defined in Section 3.23(a).
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due
on any Due Date allocable to principal and/or interest on such
Mortgage Loan
which, unless otherwise specified herein, shall give effect to any
related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
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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 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 June 30, 2005, between Bank of America, National
Association,
as seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of
Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans
pursuant to the
provisions of this Agreement) transferred to the Trustee as part of
the Trust
Estate and from time to time subject to this Agreement, attached
hereto as
Exhibit D setting forth the following information with respect to
each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) a code
indicating whether
the Mortgaged Property is owner-occupied; (iii) the property type
for each
Mortgaged Property; (iv) the original months to maturity or the
remaining months
to maturity from the Cut-off Date; (v) the Loan-to-Value Ratio at
origination;
(vi) the Mortgage Interest Rate as of the Cut-off Date; (vii) the
date on which
the first Monthly Payment was due on the Mortgage Loan, and, if
such date is not
the Due Date currently in effect, such Due Date; (viii) the stated
maturity
date; (ix) the amount of the Monthly Payment as of the Cut-off
Date; (x) the
paid-through date; (xi) the original principal amount of the
Mortgage Loan;
(xii) the principal balance of the Mortgage Loan as of the close of
business on
the Cut-off Date, after application of payments of principal due on
or before
the Cut-off Date, whether or not collected, and after deduction of
any payments
collected of scheduled principal due after the Cut-off Date; (xiii)
a code
indicating the purpose of the Mortgage Loan; (xiv) a code
indicating the
documentation style; (xv) the Appraised Value; (xvi) the first Rate
Adjustment
Date; (xvii) the Rate Ceiling; (xviii) the Periodic Cap; (xix) the
Gross Margin;
(xx) the Index; (xxi) the closing date of such Mortgage Loan;
(xxii) whether
such Mortgage Loan is a convertible Mortgage Loan; and (xxiii)
whether such
Mortgage Loan is subject to a prepayment premium. 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.
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Mortgage Loans: Such of the mortgage loans transferred and assigned
to
the Trustee pursuant to Section 2.01 as from time to time are held
as a part of
the Trust Estate (including any Substitute Mortgage Loans and REO
Property), the
Mortgage Loans originally so held being identified in the Mortgage
Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan,
which may include Co-op Shares or residential long term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon (without
giving effect
to any Incremental Rate) on the first day of the month preceding
the month of
the related Distribution Date reduced by the Servicing Fee Rate.
Net WAC Rate: As to any Distribution Date, a rate equal to the
weighted average of the Net Mortgage Interest Rates of the Mortgage
Loans (based
on Stated Principal Balances of the Mortgage Loans 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
the aggregate Compensating Interest received from the Servicer for
the Mortgage
Loans for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a Mortgage Loan which has not
been previously
reimbursed and which, in the good faith judgment of the Servicer,
will not or,
in the case of a proposed Advance, would not be ultimately
recoverable from the
related Mortgagor, related Liquidation Proceeds, or other
recoveries in respect
of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
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
Servicer, as the case may be, and delivered to the Trustee or the
Securities
Administrator, as the case may be.
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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.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee if such opinion is delivered to the Trustee, or acceptable
to the
Securities Administrator if such opinion is delivered to the
Securities
Administrator, who may be counsel for the Depositor or the Master
Servicer,
except that any opinion of counsel relating to the qualification of
the Trust
Estate as a REMIC or compliance with the REMIC Provisions must be
an opinion of
Independent counsel.
Optional Termination Date: The first Distribution Date on which the
Master Servicer may opt to repurchase the Mortgage Loans and
related REO
Property pursuant to Section 10.01.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage
described
below, as of the Closing Date:
Class B-1
1.15%
Class B-2
0.70%
Class B-3
0.45%
Class B-4
0.25%
Class B-5
0.10%
Class B-6
0.00%
Original Subordinate Certificate Balance: $29,891,911.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal Prepayment in Full prior to such
Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due
Date and which
was not purchased from the Trust prior to such Due Date pursuant to
Section
2.02.
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: With respect to each Class of Certificates, the
Net
WAC Rate.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by
dividing the initial Certificate Balance of such Certificate by the
Initial
Class Certificate Balance of the Class of which such Certificate is
a part.
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Periodic Advance: Shall have the meaning given to the term "Monthly
Advance" in the Servicing Agreement.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment
Date specified
in the applicable Mortgage Note, if any, 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 "A-1" by S&P and "F1" by Fitch;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an
original
maturity of not more than 90 days and, in the case of bankers'
acceptances,
shall in no event have an original maturity of more than 365 days
or a
remaining maturity of more than 30 days) denominated in United
States
dollars of any U.S. depository institution or trust company
incorporated
under the laws of the United States or any state thereof, rated not
lower
than "A-1" by S&P and "F1" by Fitch;
(iv) commercial paper (having original maturities of not more than
365
days) of any corporation incorporated under the laws of the United
States
or any state thereof which is rated not lower than "A-1" by S&P
and "F1" by
Fitch;
(v) investments in money market funds (including funds of the
Trustee,
the Securities Administrator or their affiliates, or funds for
which an
affiliate of the Trustee or the Securities Administrator acts as
advisor,
as well as funds for which the Trustee and its affiliates or the
Securities
Administrator and its affiliates may receive compensation) either
rated
"AAAm G" by S&P and "AAA" by Fitch (if rated by Fitch) or
otherwise
approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained
by the
Master Servicer and addressed to the Depositor and the Securities
Administrator, will not affect the qualification of the Trust
Estate as a
REMIC;
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provided, however, that no instrument shall be a permitted
investment if it
represents either (a) the right to receive only interest payments
with respect
to the underlying debt instrument or (b) the right to receive both
principal and
interest payments derived from obligations underlying such
instrument and the
principal and interest with respect to such instrument provide a
yield to
maturity greater than 120% of the yield to maturity at par of such
underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or
any State or any political subdivision thereof, or any agency or
instrumentality
of any of the foregoing, (ii) a foreign government, international
organization
or any agency or instrumentality of either of the foregoing, (iii)
an
organization which is exempt from tax imposed by Chapter 1 of the
Code
(including the tax imposed by Section 511 of the Code on unrelated
business
taxable income) (except certain farmers' cooperatives described in
Code Section
521), (iv) rural electric and telephone cooperatives described in
Code Section
1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual
Certificate is allocable to a foreign permanent establishment or
fixed base,
within the meaning of an applicable income tax treaty, of such
Person or any
other U.S. Person, and (vi) any other Person so designated by the
Master
Servicer based on an Opinion of Counsel to the effect that any
transfer to such
Person may cause the Trust or any other Holder of a Residual
Certificate to
incur tax liability that would not be imposed other than on account
of such
transfer. The terms "United States," "State" and "international
organization"
shall have the meanings set forth in Code Section 7701 or successor
provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Physical Certificates: The Class A-R, Class B-4, Class B-5 and
Class
B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date, the excess
of
(a) the sum of (i) the aggregate of (A) the interest portion of any
Monthly
Payments on the Mortgage Loans (net of the Servicing Fee and any
Incremental
Interest) and the principal portion of any Monthly Payments on the
Mortgage
Loans due on the Due Date in the calendar month in which such
Distribution Date
occurs and which is received prior to the related Determination
Date and (B) all
Periodic Advances made by the Servicer (or the Trustee) in respect
of the
Mortgage Loans and payments of Compensating Interest in respect of
such
Distribution Date deposited to the Master Servicer Custodial
Account pursuant to
Section 3.09(d)(vi); (ii) all Liquidation Proceeds received on the
Mortgage
Loans during the preceding calendar month and deposited to the
Master Servicer
Custodial Account pursuant to Section 3.09(d)(iii); (iii) all
Principal
Prepayments received on the Mortgage Loans during the calendar
month preceding
the month of such Distribution Date and deposited to the Master
Servicer
Custodial Account pursuant to Section 3.09(d)(i); (iv) in
connection with
Defective Mortgage Loans, the aggregate of the Repurchase Prices
and
Substitution Adjustment Amounts received during the calendar month
preceding the
month of such Distribution Date and deposited to the Master
Servicer Custodial
Account pursuant to Section 3.09(d)(vii); (v) any other amounts in
the Master
Servicer Custodial Account deposited therein pursuant to Sections
3.09(d)(iv),
(v) and (ix) in respect of such
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Distribution Date; (vi) any Reimbursement Amount required to be
included
pursuant to Section 5.02(a) and (vii) any Recovery in respect of
such
Distribution Date; over (b) any amounts permitted to be withdrawn
from the
Master Servicer Custodial Account pursuant to clauses (i) through
(viii),
inclusive, of Section 3.12(a).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balance of all Mortgage Loans in such
Loan Group that
were Outstanding Mortgage Loans at the close of business on the Due
Date in the
month preceding the month in which such Distribution Date occurs.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the
calendar
month preceding such Distribution Date, the amount, if any, by
which one month's
interest at the related Mortgage Interest Rate (net of the
Servicing Fee Rate)
on such Principal Prepayment exceeds the amount of interest paid in
connection
with such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect
to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA
or FHLMC.
Principal Amount: As to any Distribution Date, the sum of (i) the
sum
of (a) the principal portion of each Monthly Payment due on each
Mortgage Loan
on the related Due Date, (b) the Stated Principal Balance, as of
the date of
repurchase, of each Mortgage Loan that was repurchased by the
Seller or the
Servicer as of such Distribution Date, (c) any Substitution
Adjustment Amount in
connection with a Defective Mortgage Loan in such Loan Group
received with
respect to such Distribution Date, (d) any Liquidation Proceeds
allocable to
recoveries of principal of Mortgage Loans that are not yet
Liquidated Mortgage
Loans received by the Servicer during the calendar month preceding
the month of
such Distribution Date, (e) with respect to each Mortgage Loan that
became a
Liquidated Mortgage Loan during the calendar month preceding the
month of such
Distribution Date, the amount of Liquidation Proceeds (excluding
Excess
Proceeds) allocable to principal received by the Servicer with
respect to such
Mortgage Loan during the calendar month preceding the month of such
Distribution
Date and (f) all Principal Prepayments on the Mortgage Loans
received by the
Servicer during the calendar month preceding the month of such
Distribution
Date; and (ii) any Recovery for such Distribution Date.
Principal Prepayment: Any payment or other recovery of principal on
a
Mortgage Loan (other than Liquidation Proceeds) which is received
in advance of
its scheduled Due Date and is not accompanied by an amount of
interest
representing scheduled interest due on any date or dates in any
month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Private Certificates: The Class 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
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Amount allocable to such Class, equal to the product of the
Subordinate
Principal Distribution Amount for such Distribution Date and a
fraction, the
numerator of which is the related Class Certificate Balance thereof
and the
denominator of which is the aggregate Class Certificate Balance of
the
Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of
a Restricted Class shall be 0%. 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.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which
date an adjustment to the Mortgage Interest Rate of such Mortgage
Loan becomes
effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note and indicated on the Mortgage Loan
Schedule.
Rating Agency: Each of S&P and Fitch. If either such
organization or a
successor is no longer in existence, "Rating Agency" shall be such
nationally
recognized statistical rating organization, or other comparable
Person, as is
designated by the Depositor, notice of which designation shall be
given to the
Trustee, the Master Servicer and the Securities Administrator.
References herein
to a given rating or rating category of a Rating Agency shall mean
such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid
principal
balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date
as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Net Mortgage Interest Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that
has become the
subject of a Deficient Valuation, if the principal amount due under
the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become the
subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Monthly Payment has been
reduced.
Record Date: With respect to all of the Certificates, the last
Business Day of the month immediately preceding the month in which
the related
Distribution Date occurs.
Recovery: As to any Distribution Date, the sum of all amounts
received
during the calendar month preceding the month of such Distribution
Date on each
Mortgage Loan subsequent to such Mortgage Loan being determined to
be a
Liquidated Mortgage Loan.
Regular Certificates: The Offered Certificates and the Private
Certificates.
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Reimbursement Amount: As defined in Section 2.02.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended
from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a reduction in the amount
of interest
collectible thereon for the most recently ended calendar month as a
result of
the application of the Relief Act or comparable state legislation,
the amount,
if any, by which (i) interest collectible on such Mortgage Loan for
the most
recently ended calendar month is less than (ii) interest accrued
pursuant to the
terms of the Mortgage Note on the same principal amount and for the
same period
as the interest collectible on such Mortgage Loan for the most
recently ended
calendar month.
REMIC: As defined in the Preliminary Statement.
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 United States federal income
tax
law relating to real estate mortgage investment conduits, which
appear at
Section 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related
provisions, and regulations promulgated thereunder, as the
foregoing may be in
effect from time to time, as well as provisions of applicable state
laws.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in
connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any
date pursuant to Section 2.02, an amount equal to (a) in the case
of the Seller,
the sum of (i) the unpaid principal balance thereof and (ii) the
unpaid accrued
interest thereon at the applicable Mortgage Interest Rate from the
Due Date to
which interest was last paid by the Mortgagor to the first day of
the month
following the month in which such Mortgage Loan became eligible to
be
repurchased and (b) in the case of the Servicer, the sum of (i) the
Stated
Principal Balance of the Mortgage Loan, (ii) interest on such
Stated Principal
Balance at the Mortgage Interest Rate from the date on which
interest has last
been paid and distributed through the last day of the month in
which such
repurchase takes place and (iii) any costs and damages incurred by
the Trust in
connection with any violation by such repurchased Mortgage Loan of
any predatory
or abusive lending law, less (x) amounts received or advanced in
respect of such
repurchased Mortgage Loan which are being held in the Servicer
Custodial Account
for distribution in the month of repurchase and (y) if the Servicer
is servicing
such Mortgage Loan under the Servicing Agreement, the Servicing Fee
Rate for
such Mortgage Loan.
Request for Release: The Request for Release submitted by the
Servicer
to the Trustee or the Custodian on behalf of the Trustee, as the
case may be,
substantially in the form of Exhibit E.
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Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to
time under the
Servicing Agreement in respect of such Mortgage Loan.
Residual Certificate: The Class A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust
Department of the
Trustee or the Securities Administrator, as applicable, including
any Senior
Vice President, any Vice President, any Assistant Vice President,
any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of
the Trustee or Securities Administrator, as applicable, customarily
performing
functions similar to those performed by any of the above designated
officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
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 any
successors-in-interest and, if a successor securities administrator
is appointed
hereunder, such successor, as securities administrator.
Seller: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the
Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A-1, Class A-2 and Class A-R
Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate
Class Certificate Balance of the Subordinate Certificates is
reduced to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried to at least six places rounded up, obtained by
dividing the
aggregate Class Certificate Balance of the Senior Certificates
immediately prior
to such Distribution Date by the Pool Stated Principal Balance for
such
Distribution Date.
Senior Prepayment Percentage: During the seven years beginning on
the
first Distribution Date, 100%. The Senior Prepayment Percentage for
any
Distribution Date occurring on or after the seventh year
anniversary of the
first Distribution Date will, except as provided herein, be as
follows: for any
Distribution Date in the first year thereafter, the Senior
Percentage plus 70%
of the Subordinate Percentage for such Distribution Date; for any
Distribution
Date in the second year thereafter, the Senior Percentage plus 60%
of the
Subordinate Percentage for such Distribution Date; for any
Distribution Date in
the third year thereafter, the Senior Percentage plus 40% of the
Subordinate
Percentage for such Distribution Date; for any Distribution Date in
the fourth
year thereafter, the Senior Percentage plus 20% of the Subordinate
Percentage
for such Distribution Date; and for any Distribution Date in the
fifth or later
years thereafter, the Senior Percentage for such Distribution Date.
If, however,
on any of
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the foregoing Distribution Dates (i) the Senior Percentage exceeds
the initial
Senior Percentage, the Senior Prepayment Percentage for such
Distribution Date
will once again equal 100%, (ii) before the Distribution Date
occurring in July
2008, the Subordinate Percentage for such Distribution Date is
greater than or
equal to twice the initial Subordinate Percentage, the Senior
Prepayment
Percentage for such Distribution Date will equal the Senior
Percentage plus 50%
of the Subordinate Percentage or (iii) on or after the Distribution
Date in July
2008, the Subordinate Percentage for such Distribution Date is
greater than or
equal to twice the initial Subordinate Percentage, the Senior
Prepayment
Percentage for such Distribution Date will equal the Senior
Percentage.
Notwithstanding the foregoing, no decrease in the share of the
Subordinate
Percentage (for calculating the Senior Prepayment Percentage) will
occur and the
Senior Prepayment Percentage 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,
the
sum of (i) the Senior Percentage of the amounts described in
clauses (i)(a)
through (d) of the definition of "Principal Amount" for such
Distribution Date
and (ii) the Senior Prepayment Percentage of the amounts described
in clauses
(i)(e) and (f) and the amount described in clause (ii) of the
definition of
"Principal Amount" for such Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment Percentage applies, (i) the
outstanding
principal balance of all Mortgage Loans (including, for this
purpose, any
Mortgage Loans in foreclosure, any REO Property and any Mortgage
Loan for which
the Mortgagor has filed for bankruptcy after the Closing Date)
delinquent 60
days or more (averaged over the preceding six-month period), as a
percentage of
the aggregate Class Certificate Balance of the Subordinate
Certificates, is not
equal to or greater than 50% or (ii) cumulative Realized Losses
with respect to
the Mortgage Loans as of the applicable Distribution Date do not
exceed the
percentages of the Original Subordinate Certificate Balance set
forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
July 2005 through June 2008
20%
July 2008 through June 2013
30%
July 2013 through June 2014
35%
July 2014 through June 2015
40%
July 2015 through June 2016
45%
July 2016 and thereafter
50%
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Servicer: Wells Fargo Bank, in its capacity as originator or
servicer
of the Mortgage Loans, or any successor servicer appointed as
herein provided.
Servicer Custodial Account: The separate account created and
maintained by the Servicer pursuant to the Servicing Agreement.
Servicer Remittance Date: Shall have the meaning given to the term
"Remittance Date" in the Servicing Agreement.
Servicing Advance: Shall have the meaning given to the term
"Servicing
Advances" in the Servicing Agreement.
Servicing Agreement: The Master Seller's Warranties and Servicing
Agreement, dated as of March 1, 2005, by and between BANA and Wells
Fargo Bank.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in
the Servicing Agreement.
Servicing Officer: As defined in the Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the
Master Servicer or the Trustee, as applicable, related to any
termination of the
Servicer, appointment of a successor Servicer or the transfer and
assumption of
servicing by the Trustee with respect to the Servicing Agreement
(including,
without limitation, (i) all legal costs and expenses and all due
diligence costs
and expenses associated with an evaluation of the potential
termination of the
Servicer as a result of an event of default by the Servicer and
(ii) any costs
or expenses associated with the complete transfer of all servicing
data and the
completion, correction or manipulation of such servicing data as
may be required
by the Master Servicer or the Trustee to correct any errors or
insufficiencies
in the servicing data or otherwise to enable the Trustee to service
the Mortgage
Loans properly and effectively).
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as
specified in
the amortization schedule at the time relating thereto (before any
adjustment to
such amortization schedule by reason of any moratorium or similar
waiver or
grace period) after giving effect to any previous partial Principal
Prepayments
and Liquidation Proceeds allocable to principal (other than with
respect to any
Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date
and irrespective of any delinquency in payment by the related
Mortgagor, and
after giving effect to any Deficient Valuation.
Subordinate Certificates: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6 Certificates.
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Subordinate Percentage: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date,
100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the
Subordinate Percentage
of the amounts described in clauses (i)(a) through (d) of the
definition of
"Principal Amount" for such Distribution Date and (ii) the
Subordinate
Prepayment Percentage of the amounts described in clauses (i)(e)
and (f) and the
amount described in clause (ii) of the definition of "Principal
Amount" for such
Distribution Date.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective
Mortgage Loan which must, on the date of such substitution (i) have
a Stated
Principal Balance, after deduction of the principal portion of the
Monthly
Payment due in the month of substitution, not in excess of the
Stated Principal
Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage
Interest Rate
not less than and not more than 2% greater than that of the
Defective Mortgage
Loan; (iii) be of the same type as the Defective Mortgage Loan;
(iv) have a
Loan-to-Value Ratio not higher than that of the Defective Mortgage
Loan; (v)
have a Gross Margin not less than that of the Defective Mortgage
Loan; (vi) have
a credit grade not lower in quality than that of the Defective
Mortgage Loan;
(vii) have the same Index as the Defective Mortgage Loan; (viii)
have the same
lien priority as the Defective Mortgage Loan; (ix) have a remaining
term to
maturity not greater than (and not more than one year less than)
that of the
Defective Mortgage Loan; and (x) comply with each Mortgage Loan
representation
and warranty set forth in the Servicing Agreement, the Mortgage
Loan Purchase
Agreement and this Agreement relating to the Defective Mortgage
Loan. More than
one Substitute Mortgage Loan may be substituted for a Defective
Mortgage Loan if
such Substitute Mortgage Loans meet the foregoing attributes in the
aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner provided under Treasury
Regulations
Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Treasury Regulations: The final and temporary regulations
promulgated
under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named
"Banc
of America Funding 2005-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 which a REMIC election is to be made, such entire
Trust Estate
consisting of: (i) such Mortgage Loans as from time to time are
subject to this
Agreement, together with the Mortgage Files relating thereto, and
together with
all collections thereon and proceeds thereof, (ii) any REO
Property, together
with all collections thereon and proceeds thereof, (iii) the
Trustee's rights
with respect to the
-22-
Mortgage Loans under all insurance policies required to be
maintained pursuant
to this Agreement and any proceeds thereof, (iv) the Depositor's
rights under
the Servicing Agreement and the Mortgage Loan Purchase Agreement
(including any
security interest created thereby) and (v) the Servicer Custodial
Account, the
Master Servicer Custodial Account and the Distribution Account 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.
Unscheduled Principal Payments: As to any Distribution Date, the
sum
of (i) with respect to each Mortgage Loan that became a Liquidated
Mortgage Loan
during the calendar month preceding the month of such Distribution
Date, the
amount of Liquidation Proceeds (excluding Excess Proceeds)
allocable to
principal received by the Servicer with respect to such Mortgage
Loan during the
calendar month preceding the month of such Distribution Date and
(b) all
Principal Prepayments on the Mortgage Loans received by the
Servicer during the
calendar month preceding the month of such Distribution Date.
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 United States
federal income
tax purposes, an estate whose income is subject to United States
federal income
tax regardless of its source, or a trust if a court within the
United States is
able to exercise primary supervision over the administration of
such trust, and
one or more such U.S. Persons have the authority to control all
substantial
decisions of such trust (or, to the extent provided in applicable
Treasury
Regulations, certain trusts in existence on August 20, 1996 which
are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date
of
determination, (a) 1% of all Voting Rights shall be allocated to
the Holder of
the Residual Certificate and (b) the remaining Voting Rights shall
be allocated
among Holders of the remaining Classes of Certificates in
proportion to the
Certificate Balances of their respective Certificates on such date.
Wells Fargo Bank: Wells Fargo Bank, N.A., or its successor in
interest.
Section 1.02 Calculations. All calculations of interest will be
made
on a 360-day year consisting of twelve (12) 30-day moths. 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
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conveys to the Trustee on behalf of the Trust for the benefit of
the
Certificateholders, without recourse, all the right, title and
interest of the
Depositor in and to the Mortgage Loans, including all interest and
principal
received on or with respect to the Mortgage Loans (other than
payments of
principal and interest due and payable on the Mortgage Loans on or
before the
Cut-off Date), the Depositor's rights under the Mortgage Loan
Purchase
Agreement, including the rights of the Depositor as assignee of the
Seller with
respect to the Seller's rights under the Servicing 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,
(iii) the Massachusetts Predatory Home Loan Practices Act effective
November 7,
2004 or (iv) the Indiana Home Loan Practices Act, effective January
1, 2005.
(b) In connection with such transfer and assignment, the Depositor
has
delivered or caused to be delivered to the Trustee, or a Custodian
on behalf of
the Trustee, for the benefit of the Certificateholders, the
following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Wachovia
Bank,
National Association, as trustee for holders of Banc of America
Funding
Corporation Mortgage Pass-Through Certificates, Series 2005-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) 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 2005-D" (which may be included in
a
blanket assignment or assignments); provided that, if the related
Mortgage
has not been returned from the applicable public recording office,
such
Assignment of Mortgage may exclude the information to be provided
by the
recording office; and provided, further, if the related Mortgage
has been
recorded in the name of Mortgage Electronic Registration Systems,
Inc.
("MERS") or its designee, no Assignment of Mortgage in favor of the
Trustee
will be required to be prepared or delivered and instead, the
Master
Servicer shall enforce the obligations of the Servicer to take all
actions
as are necessary to cause the Trust to be shown as the owner of the
related
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by
MERS;
-24-
(iii) the originals of all assumption, modification, consolidation
or
extension agreements, if any, with evidence of recording thereon,
if any;
(iv) the original of any guarantee executed in connection with the
Mortgage Note;
(v) for each Mortgage Loan, if any, which is secured by a
residential
long-term lease, a copy of the lease with evidence of recording
indicated
thereon, or, if the lease is in the process of being recorded, a
photocopy
of the lease, certified by an officer of the respective prior owner
of such
Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to
be a true
and correct copy of the lease transmitted for recordation; and
(vi) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage;
provided, however, that on the Closing Date, with respect to item
(ii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the Trustee or a Custodian on behalf of
the Trustee,
as the case may be, a copy of such Assignment of Mortgage in blank
rather than
in the name of the Trustee and has caused the Servicer to retain
the completed
Assignment of Mortgage for recording as described below, unless
such Mortgage
has been recorded in the name of MERS or its designee. In addition,
if the
Depositor is unable to deliver or cause the delivery of any
original Mortgage
Note due to the loss of such original Mortgage Note, the Depositor
may deliver a
copy of such Mortgage Note, together with a lost note affidavit,
and shall
thereby be deemed to have satisfied the document delivery
requirements of this
Section 2.01(b). As set forth on Exhibit J attached hereto is a
list of all
states where recordation is required by any Rating Agency to obtain
the initial
ratings of the Certificates. The Securities Administrator, the
Trustee and the
Custodian may rely and shall be protected in relying upon the
information
contained in such Exhibit J.
If in connection with any Mortgage Loans, the Depositor cannot
deliver
(A) all assumption, modification, consolidation or extension
agreements, if any,
or (B) the lender's title policy, if any (together with all riders
thereto),
satisfying the requirements of clause (iii) or (iv) 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 (iii) above, or because the title policy, if
any, has not
been delivered to the Servicer, the Seller or the Depositor by the
applicable
title insurer in the case of clause (iv) above, the Depositor shall
promptly
deliver or cause to be delivered to the Trustee or a Custodian on
behalf of the
Trustee, as the case may be, in the case of clause (iii) above,
such assumption,
modification, consolidation or extension agreement 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
(iii) above, there has been a continuing delay at the applicable
recording
office or, in the case of clause (iv) above, there has been a
continuing delay
at the applicable insurer and the Depositor has delivered the
Officer's
Certificate to such effect to the Trustee. The Depositor shall
forward or cause
to be forwarded to the Trustee or a Custodian on behalf of the
Trustee, as the
case may be, (1) from time to time additional original documents
-25-
evidencing an assumption or modification of a Mortgage Loan and (2)
any other
documents required to be delivered by the Depositor or the Servicer
to the
Trustee or a Custodian on behalf of the Trustee, as the case may
be. In the
event that in connection with the payment in full of the related
Mortgage Loan
the public recording office requires the presentation of a "lost
instruments
affidavit and indemnity" or any equivalent document, because only a
copy of the
Mortgage can be delivered with the instrument of satisfaction or
reconveyance,
the Depositor shall prepare, execute and deliver or cause to be
prepared,
executed and delivered, on behalf of the Trust, such a document to
the public
recording office.
Following a Document Transfer Event, the Depositor shall deliver,
or
cause to be delivered, to the Trustee or a Custodian on behalf of
the Trustee,
as the case may be, 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
Mortgage Loan; provided, however, that originals of such documents
or
instruments shall be delivered to the Trustee or Custodian, as the
case may be,
if originals are required under the law in which the related
Mortgaged Property
is located in order to exercise all remedies available to the Trust
under
applicable law following default by the related Mortgagor:
(1) other than if the related Mortgage has been recorded in the
name
of MERS or its designee, an original copy of any intervening
assignment of
Mortgage showing a complete chain of assignments;
(2) the original or a certified copy of lender's title insurance
policy;
(3) the original Mortgage with evidence of recording thereon, and
the
original recorded power of attorney, if the Mortgage was executed
pursuant to a
power of attorney, with evidence of recording thereon or, if such
Mortgage or
power of attorney has been submitted for recording but has not been
returned
from the applicable public recording office, has been lost or is
not otherwise
available, a copy of such Mortgage or power of attorney, as the
case may be,
certified to be a true and complete copy of the original submitted
for
recording; and
(4) for each Mortgage Loan secured by Co-op Shares, the originals
of
the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete
and
unbroken line from the mortgagee to the Trustee with evidence of
recording
thereon (or in a form suitable for recordation).
-26-
As promptly as practicable subsequent to such transfer and
assignment,
the Master Servicer shall (except for any Mortgage which has been
recorded in
the name of MERS or its designee) enforce the obligations of the
Servicer
pursuant to the 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 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 Servicer has not received the information
required to
prepare such assignment in recordable form, the Servicer's
obligation to do so
and to deliver the same for such recording shall be as soon as
practicable after
receipt of such information and in accordance with the Servicing
Agreement and,
no recording of an Assignment of Mortgage will be required in a
state if either
(i) the Depositor furnishes to the Trustee and the Securities
Administrator an
unqualified Opinion of Counsel reasonably acceptable to the Trustee
and the
Securities Administrator to the effect that recordation of such
assignment is
not necessary under applicable state law to preserve the Trustee's
interest in
the related Mortgage Loan against the claim of any subsequent
transferee of such
Mortgage Loan or any successor to, or creditor of, the Depositor or
the
originator of such Mortgage Loan or (ii) the recordation of an
Assignment of
Mortgage in such state is not required by any Rating Agency in
order to obtain
the initial ratings on the Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as of
the
Closing Date, the Depositor, in lieu of delivering the above
documents to the
Trustee or a Custodian on behalf of the Trustee, as the case may
be, will cause
the Servicer to deliver to the Master Servicer for deposit in the
Master
Servicer Custodial Account the portion of such payment that is
required to be
deposited in the Master Servicer Custodial Account pursuant to
Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage
Loans. Subject to the provisions of the following paragraph, the
Trustee
declares that it, or a Custodian as its agent, will hold the
documents referred
to in Section 2.01 and the other documents delivered to it or a
Custodian acting
as its agent, as the case may be, constituting the Mortgage Files,
and that it
will hold such other assets as are included in the Trust Estate
delivered to it,
in trust for the exclusive use and benefit of all present and
future
Certificateholders. Upon execution and delivery of this document,
the Trustee
shall deliver or cause a Custodian to deliver to the Depositor and
the Master
Servicer a certification in the form of Exhibit K hereto (the
"Initial
Certification") to the effect that, except as may be specified in a
list of
exceptions attached thereto, such Person has received the original
Mortgage Note
relating to each of the Mortgage Loans 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, or cause a Custodian on behalf of the Trustee
to review,
the Mortgage Files in such Person's possession, and shall deliver
to the
Depositor and the Master Servicer a certification in the form of
Exhibit L
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).
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If the Trustee or a Custodian finds any document constituting a
part
of a Mortgage File which does not meet the requirements of Section
2.01 or is
omitted from such Mortgage File or if the Depositor, the Master
Servicer, the
Trustee, a Custodian or the Securities Administrator discovers a
breach by the
Servicer or the Seller of any representation, warranty or covenant
under the
Servicing Agreement or the Mortgage Loan Purchase Agreement in
respect of any
Mortgage Loan and such breach materially adversely affects the
interest of the
Certificateholders in the related Mortgage Loan (provided that any
such breach
that causes the Mortgage Loan not to be a "qualified mortgage"
within the
meaning of Section 860G(a)(3) of the code shall be deemed to
materially and
adversely affect the interests of the Certificateholders), then
such party shall
promptly so notify the Master Servicer, the Seller, the Servicer
and the
Depositor of such failure to meet the requirements of Section 2.01
or of such
breach and request that the Servicer or the Seller, as applicable,
deliver such
missing documentation or cure such defect or breach within 90 days
of its
discovery or its receipt of notice of any such failure to meet the
requirements
of Section 2.01 or of such breach. If the Seller or the Servicer,
as applicable,
does not deliver such missing document or cure such defect or
breach in all
material respects during such period, the Trustee shall enforce the
Servicer's
or Seller's obligation, as the case may be, under the Servicing
Agreement or the
Mortgage Loan Purchase Agreement, as applicable, and cause the
Servicer or
Seller, as applicable, to either (a) solely in the case of the
Seller,
substitute for the related Mortgage Loan a Substitute Mortgage
Loan, which
substitution shall be accomplished in the manner and subject to the
conditions
set forth below or (b) purchase such Mortgage Loan from the Trust
at the
Repurchase Price for such Mortgage Loan; provided, however, that in
no event
shall such a substitution occur more than two years from the
Closing Date;
provided, further, that such substitution or repurchase must occur
within 90
days of when such defect was discovered if such defect will cause
the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3)
of the Code.
In performing any such review, the Trustee or a Custodian may
conclusively rely on the purported genuineness of any such document
and any
signature thereon. It is understood that the scope of the Trustee's
or a
Custodian's review of the Mortgage Files is limited solely to
confirming that
the documents listed in Section 2.01 have been received and further
confirming
that any and all documents delivered pursuant to Section 2.01
appear on their
face to have been executed and relate to the Mortgage Loans
identified in the
Mortgage Loan Schedule based solely upon the review of items (i)
and (xi) in the
definition of Mortgage Loan Schedule. Neither the Trustee nor any
Custodian
shall have any responsibility for determining whether any document
is valid and
binding, whether the text of any assignment or endorsement is in
proper or
recordable form, whether any document has been recorded in
accordance with the
requirements of any applicable jurisdiction, or whether a blanket
assignment is
permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of the Servicer or the Seller, the Trustee shall enforce
the rights of
the Trust under the Servicing Agreement and the Mortgage Loan
Purchase Agreement
for the benefit of the Certificateholders. In the event of a breach
of the
representations or warranties with respect to the Mortgage Loans
set forth in
the Servicing Agreement, the Trustee shall enforce the right of the
Trust to be
indemnified for such breach of representation or warranty. In
addition, if a
breach of a representation set forth in clauses (k) and (o) of
paragraph 3 of
the Mortgage Loan Purchase Agreement occurs as a result of a
violation of an
applicable predatory or abusive lending law, the
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Trustee shall enforce the right of the Trust to reimbursement by
the Seller for
all costs or damages incurred by the Trust as a result of the
violation of such
law (such amount, the "Reimbursement Amount"), but only to the
extent the
Servicer does not so reimburse the Trust. It is understood and
agreed that,
except for any indemnification provided in the Servicing Agreement
and the
payment of any Reimbursement Amount, the obligation of the Servicer
or the
Seller to cure or to repurchase (or substitute, in the case of the
Seller) any
Mortgage Loan as to which a document is missing, a material defect
in a
constituent document exists or as to which such a breach has
occurred and is
continuing shall constitute the sole remedy against the 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 set forth in the
Mortgage Loan Purchase Agreement that are made to the best of the
Seller's
knowledge or as to which the Seller had no knowledge, if it is
discovered by the
Depositor, the Master Servicer or the Trustee that the substance of
such
representation or warranty is inaccurate and such inaccuracy
materially and
adversely affects the interest of the Certificateholders in the
related Mortgage
Loan then, notwithstanding the Seller's lack of knowledge with
respect to the
substance of such representation or warranty being inaccurate at
the time the
representation or warranty was made, such inaccuracy shall be
deemed a breach of
the applicable representation or warranty.
It is understood and agreed that the representations and warranties
set forth in the Mortgage Loan Purchase Agreement shall survive
delivery of the
Mortgage Files to the Trustee or a Custodian and shall inure to the
benefit of
the Certificateholders notwithstanding any restrictive or qualified
endorsement
or assignment. It is understood and agreed that the obligations of
the Seller
set forth in this Section 2.02 to cure, substitute for or
repurchase a Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement constitute
the sole
remedies available to the Certificateholders and to the Trustee on
their behalf
respecting a breach of the representations and warranties contained
in the
Mortgage Loan Purchase Agreement.
The representations and warranties of the Servicer with respect to
the
Mortgage Loans in the Servicing Agreement, which have been assigned
to the
Trustee hereunder, were made as of the date specified in the
Servicing
Agreement. To the extent that any fact, condition or event with
respect to a
Mortgage Loan constitutes a breach of both (i) a representation or
warranty of
the Servicer under the Servicing Agreement and (ii) a
representation or warranty
of the 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 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 Servicer in the Servicing Agreement, without
regard to
whether the Servicer fulfills its contractual obligations in
respect of such
representation or warranty. The Trustee further acknowledges that
the Depositor
shall have no obligation or liability with respect to any breach of
any
representation or warranty with respect to the Mortgage Loans
(except as set
forth in Section 2.04) under any circumstances.
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With respect to each Substitute Mortgage Loan, the Seller shall
deliver to the Trustee or Custodian on behalf of the Trustee, as
the case may
be, for the benefit of the Certificateholders, the Mortgage Note,
the related
Assignment of Mortgage (except for any Mortgage which has been
recorded in the
name of MERS or its designee), and such other documents and
agreements as are
otherwise required by Section 2.01, with the Mortgage Note endorsed
and the
Mortgage assigned as required by Section 2.01. No substitution is
permitted to
be made in any calendar month after the Determination Date for such
month.
Monthly Payments due with respect to any such Substitute Mortgage
Loan in the
month of substitution shall not be part of the Trust Estate. For
the month of
substitution, distributions to Certificateholders will include the
Monthly
Payment due for such month on any Defective Mortgage Loan for which
the Seller
has substituted a Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of each
Mortgage Loan
that has become a Defective Mortgage Loan and the substitution of
the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the
amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee
and any
Custodian. Upon such substitution, each Substitute Mortgage Loan
shall be
subject to the terms of this Agreement in all respects, and the
Seller shall be
deemed to have made to the Trustee with respect to such Substitute
Mortgage
Loan, as of the date of substitution, the representations and
warranties made
pursuant to paragraph 3 of the Mortgage Loan Purchase Agreement.
Upon any such
substitution and the deposit to the Master Servicer Custodial
Account of any
required Substitution Adjustment Amount (as described in the next
paragraph) and
receipt of a Request for Release, the Trustee shall upon receipt of
written
notice from the Master Servicer of such deposit, release, or shall
direct a
Custodian to release, the Mortgage File relating to such Defective
Mortgage Loan
to the Seller and shall execute and deliver at the Seller's
direction such
instruments of transfer or assignment prepared by the Seller, in
each case
without recourse, as shall be necessary to vest title in the
Seller, or its
designee, to the Trustee's interest in any Defective Mortgage Loan
substituted
for pursuant to this Section 2.02.
For any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by
which the aggregate principal balance of all such Substitute
Mortgage Loans as
of the date of substitution is less than the aggregate Stated
Principal Balance
of all such Defective Mortgage Loans (after application of the
principal portion
of the Monthly Payments due in the month of substitution) (the
"Substitution
Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed
Advances with respect to such Defective Mortgage Loans shall be
remitted to the
Master Servicer Custodial Account by the Seller on or before the
Servicer
Remittance Date for the Distribution Date in the month succeeding
the calendar
month during which the related Mortgage Loan is required to be
purchased or
replaced hereunder. The Repurchase Price of any repurchase and the
Substitution
Adjustment Amount, if any, shall be deposited in the Master
Servicer Custodial
Account. The Master Servicer shall give the Securities
Administrator and the
Trustee written notice of such deposits.
Notwithstanding anything to the contrary contained herein, no
substitution shall occur more than two years from the Closing Date.
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The Trustee shall retain or shall cause a Custodian to retain, as
applicable, possession and custody of each Mortgage File in
accordance with and
subject to the terms and conditions set forth herein. The Master
Servicer shall
cause to be promptly delivered to the Trustee or the Custodian on
behalf of the
Trustee, as the case may be, upon the execution or, in the case of
documents
requiring recording, receipt thereof, the originals of such other
documents or
instruments constituting the Mortgage File as come into the Master
Servicer's
possession from time to time.
The Trustee or a 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)(iii), (iv), (v) and (vi).
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer.
The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the
Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of
the
United States of America and has all licenses necessary to carry on
its
business as now being conducted. The Master Servicer has power and
authority to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be delivered
pursuant
to this Agreement) by the Master Servicer and the consummation of
the
transactions contemplated hereby have been duly and validly
authorized.
This Agreement, assuming due authorization, execution and delivery
by the
other parties hereto, evidences the valid, binding and enforceable
obligation of the Master Servicer, subject to applicable law except
as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation,
receivership, moratorium, reorganization or other similar laws
affecting
the enforcement of the rights of creditors and (B) general
principles of
equity, whether enforcement is sought in a proceeding in equity or
at law.
All requisite corporate action has been taken by the Master
Servicer to
make this Agreement valid and binding upon the Master Servicer in
accordance with its terms.
(ii) No consent, approval, authorization or order is required for
the
transactions contemplated by this Agreement from any court,
governmental
agency or body, or federal or state regulatory authority having
jurisdiction over the Master Servicer is required or, if required,
such
consent, approval, authorization or order has been or will, prior
to the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master
Servicer and
will not result in the breach of any term or provision of the
charter or
by-laws of the Master Servicer or result in the breach of any term
or
provision of, or conflict with or constitute a default under or
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result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which
the
Master Servicer or its property is subject, or result in the
violation of
any law, rule, regulation, order, judgment or decree to which the
Master
Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or,
to the best knowledge of the Master Servicer, threatened against
the Master
Servicer which, either individually or in the aggregate, would
result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Master Servicer, or in any
material
impairment of the right or ability of the Master Servicer to carry
on its
business substantially as now conducted or which would draw into
question
the validity of this Agreement or the Mortgage Loans or of any
action taken
or to be taken in connection with the obligations of the Master
Servicer
contemplated herein, or which would materially impair the ability
of the
Master Servicer to perform under the terms of this Agreement.
The representations and warranties made pursuant to this Section
2.03
shall survive delivery of the respective Mortgage Files to the
Trustee for the
benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case
may be, as of
the date hereof or such other date set forth herein that as of the
Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage
Loans.
The Mortgage Loans were not assigned or pledged by the Depositor
and the
Depositor had good and marketable title thereto, and the Depositor
had full
right to transfer and sell the Mortgage Loans to the Trustee free
and clear
of any encumbrance, participation interest, lien, equity, pledge,
claim or
security interest and had full right and authority subject to no
interest
or participation in, or agreement with any other party to sell or
otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right,
title and interest in the Mortgage Loans to the Trustee on behalf
of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any
intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the
respective Mortgage
Files to the Trustee or a Custodian and shall inure to the benefit
of the
Trustee, notwithstanding any restrictive or qualified endorsement
or assignment.
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Section 2.05 Designation of Interests in the REMICs. The Trustee
hereby designates the Classes of Certificates (other than the Class
A-R
Certificate) as "regular interests" and the Class A-R Certificate
as the single
class of "residual interest" in the REMIC for the purposes of Code
Sections
860G(a)(1) and 860G(a)(2), respectively, and the REMIC Provisions
generally.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of the REMIC within the meaning of
Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the "latest
possible maturity date" of the Regular Certificates is August 25,
2035.
Section 2.08 Execution and Delivery of Certificates. The Depositor,
concurrently with the execution and delivery hereof, does hereby
transfer,
assign, set over and otherwise convey in trust to the Trustee
without recourse
all the right, title and interest of the Depositor in and to the
Mortgage Loans
for the benefit of the Holders of the Regular Certificates and the
Class A-R
Certificate. The Trustee acknowledges receipt of the Mortgage Loans
and declares
that it holds and shall hold the same in trust for the exclusive
use and benefit
of the Holders of the Regular Certificates and the Class A-R
Certificate. The
interests evidenced by the Regular Certificates and the Class A-R
Certificate
constitute the entire beneficial ownership interest in the REMIC.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and on
behalf
of the Certificateholders, the Master Servicer shall supervise,
monitor and
oversee the obligations of the Servicer to service and administer
the Mortgage
Loans in accordance with the terms of the Servicing Agreement and
shall have
full power and authority to do any and all things which it may deem
necessary or
desirable in connection with such master servicing and
administration. In
performing its obligations hereunder, the Master Servicer shall act
in a manner
consistent with this Agreement, subject to the prior sentence, and
with
customary and usual standards of practice of prudent mortgage loan
master
servicers. Furthermore, the Master Servicer shall oversee and
consult with the
Servicer as necessary from time-to-time to carry out the Master
Servicer's
obligations hereunder, shall receive, review and evaluate all
reports,
information and other data provided to the Master Servicer by the
Servicer and
shall cause the Servicer to perform and observe the covenants,
obligations and
conditions to be performed or observed by the Servicer under the
Servicing
Agreement. The Master Servicer shall independently and separately
monitor the
Servicer's servicing activities with respect to each Mortgage Loan,
reconcile
the results of such monitoring with such information provided in
the previous
sentence on a monthly basis and coordinate corrective adjustments
to the
Servicer's and Master Servicer's records, and based on such
reconciled and
corrected information, prepare the Master Servicer's Certificate
and any other
information and statements required hereunder. The Master Servicer
shall
reconcile the
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results of its Mortgage Loan monitoring with the actual remittances
of the
Servicer to the Master Servicer Custodial Account pursuant to the
Servicing
Agreement.
The relationship of the Master Servicer (and of any successor to
the
Master Servicer as master servicer under this Agreement) to the
Trustee and the
Securities Administrator under this Agreement is intended by the
parties to be
that of an independent contractor and not that of a joint venturer,
partner or
agent.
Section 3.02 Monitoring of the Servicer.
(a) The Master Servicer shall be responsible for reporting to the
Trustee, the Securities Administrator and the Depositor the
compliance by the
Servicer with its duties under the Servicing Agreement. In the
review of the
Servicer's activities, the Master Servicer may rely upon an
officer's
certificate of the Servicer with regard to the Servicer's
compliance with the
terms of the Servicing Agreement. In the event that the Master
Servicer, in its
judgment, determines that the Servicer should be terminated in
accordance with
the Servicing Agreement, or that a notice should be sent pursuant
to the
Servicing Agreement with respect to the occurrence of an event
that, unless
cured, would constitute grounds for such termination, the Master
Servicer shall
notify the Depositor, the Securities Administrator and the Trustee
thereof and
the Master Servicer shall issue such notice or take such other
action as it
deems appropriate.
(b) In the event that the Servicer fails to perform its obligations
in
accordance with the Servicing Agreement, the Master Servicer shall,
subject to
the preceding paragraph, notify the Trustee in writing of such
failure. Pursuant
to its receipt of such notification from the Master Servicer, the
Trustee shall
terminate the rights and obligations of the Servicer under the
Servicing
Agreement, and the Trustee, if it so elects, shall act as successor
Servicer, or
shall enter into a new Servicing Agreement with a successor
Servicer appointed
by the Trustee; provided, however, it is understood and
acknowledged by the
parties hereto that there will be a period of transition (not to
exceed 90 days)
before the actual servicing functions can be fully transferred to
such successor
Servicer. Enforcement of the Servicing Agreement, including,
without limitation,
the legal prosecution of claims, termination of the Servicing
Agreement and the
pursuit of other appropriate remedies, shall be in such form and
carried out to
such an extent and at such time as the Trustee, in its good faith
business
judgment, would require were it the owner of the related Mortgage
Loans. The
Trustee 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 Mortgage Loan or (ii) from a specific recovery of
costs, expenses
or attorneys fees against the party whom such enforcement is
directed, provided
that the Trustee shall not be required to prosecute or defend any
legal action
except to the extent that the Trustee shall have received
reasonable indemnity
for its costs and expenses in pursuing such action.
(c) To the extent that any Servicing Transfer Costs are not fully
and
timely reimbursed by the terminated Servicer, the Master Servicer
or the
Trustee, as applicable, shall be entitled to reimbursement of such
costs and
expenses from the Master Servicer Custodial Account.
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(d) The Master Servicer shall require the Servicer to comply with
the
remittance requirements and other obligations set forth in the
Servicing
Agreement.
(e) If the Trustee or other party acts as succesor Servicer, such
party will not assume liability for the representations and
warranties of the
Servicer.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Master
Servicer shall maintain, at its own expense, a blanket fidelity
bond and an
errors and omissions insurance policy, with broad coverage on all
officers,
employees or other persons involved in the performance of its
obligations as
Master Servicer hereunder. These policies must insure the Master
Servicer
against losses resulting from dishonest or fraudulent acts
committed by the
Master Servicer's personnel, any employees of outside firms that
provide data
processing services for the Master Servicer, and temporary contract
employees or
student interns. No provision of this Section 3.03 requiring such
fidelity bond
and errors and omissions insurance shall diminish or relieve the
Master Servicer
from its duties and obligations as set forth in this Agreement. The
minimum
coverage under any such bond and insurance policy shall be at least
equal to the
corresponding amounts required by FNMA in the FNMA Servicing Guide
or by FHLMC
in the FHLMC Sellers' & Servicers' Guide, as amended or
restated from time to
time, or in an amount as may be permitted to the Master Servicer by
express
waiver of FNMA or FHLMC. In the event that any such policy or bond
ceases to be
in effect, the Master Servicer shall obtain a comparable
replacement policy or
bond from an insurer or issuer, meeting the requirements set forth
above as of
the date of such replacement.
Section 3.04 Access to Certain Documentation. The Master Servicer
shall provide and cause the Servicer to provide in accordance with
the Servicing
Agreement to the OCC, the OTS, the FDIC and to comparable
regulatory authorities
supervising Holders of Certificates and the examiners and
supervisory agents of
the OCC, the OTS, the FDIC and such other authorities, access to
the
documentation required by applicable regulations of the OCC, the
OTS, the FDIC
and such other authorities with respect to the Mortgage Loans. Such
access shall
be afforded without charge, but only upon reasonable and prior
written request
and during normal business hours at the offices designated by the
Master
Servicer and the Servicer. In fulfilling such request for access,
the Master
Servicer shall not be responsible to determine the sufficiency of
any
information provided by the Servicer. Nothing in this Section 3.04
shall limit
the obligation of the Master Servicer and the Servicer to observe
any applicable
law and the failure of the Master Servicer or the Servicer to
provide access as
provided in this Section 3.04 as a result of such obligation shall
not
constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The Master Servicer shall not take, or permit the Servicer (to
the
extent such action is prohibited under the Servicing Agreement) to
take, any
action that would result in noncoverage under any applicable
Primary Mortgage
Insurance Policy of any loss which, but for the actions of such
Master Servicer
or Servicer, would have been covered thereunder. The Master
Servicer shall use
its best reasonable efforts to cause the Servicer (to the extent
required under
the Servicing Agreement) to keep in force and effect (to the extent
that the
Mortgage Loan requires the Mortgagor to maintain such insurance),
primary
mortgage insurance applicable to each Mortgage Loan in accordance
with the
provisions of this Agreement and the Servicing
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Agreement, as applicable. The Master Servicer shall not, and shall
not permit
the Servicer (to the extent required under the Servicing Agreement)
to, cancel
or refuse to renew any such Primary Mortgage Insurance Policy that
is in effect
at the date of the initial issuance of the Mortgage Note and is
required to be
kept in force hereunder except in accordance with the provisions of
this
Agreement and the Servicing Agreement, as applicable
(b) The Master Servicer agrees to present, or to cause the Servicer
(to the extent required under the Servicing Agreement) to present,
on behalf of
the Trustee and the Certificateholders, claims to the insurer under
any Primary
Mortgage Insurance Policies and, in this regard, to take such
reasonable action
as shall be necessary to permit recovery under any Primary Mortgage
Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Sections
3.08 and
3.09, any amounts collected by the Master Servicer or the Servicer
under any
Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer
Custodial Account, subject to withdrawal pursuant to Section 3.12.
Section 3.06 Rights of the Depositor, the Securities Administrator
and
the Trustee in Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of
the Master Servicer hereunder and may, but is not obligated to,
perform, or
cause a designee to perform, any defaulted obligation of the Master
Servicer
hereunder and in connection with any such defaulted obligation to
exercise the
related rights of the Master Servicer hereunder; provided that the
Master
Servicer shall not be relieved of any of its obligations hereunder
by virtue of
such performance by the Depositor or its designee. None of the
Securities
Administrator, the Trustee or the Depositor shall have any
responsibility or
liability for any action or failure to act by the Master Servicer,
and the
Securities Administrator, the Trustee or the Depositor shall not be
obligated to
supervise the performance of the Master Servicer hereunder or
otherwise.
Section 3.07 Trustee to Act as Master Servicer.
If the Master Servicer shall for any reason no longer be the Master
Servicer hereunder (including by reason of an Event of Default),
the Trustee
shall within 90 days of such time, assume, if it so elects, or
shall appoint a
successor Master Servicer to assume, all of the rights and
obligations of the
Master Servicer hereunder arising thereafter. Any such assumption
shall be
subject to Sections 7.02 and 8.05.
The predecessor Master Servicer shall, upon request of the Trustee,
but at the expense of the predecessor Master Servicer, deliver to
the assuming
party all master servicing documents and records and an accounting
of amounts
collected or held by it and otherwise use its best efforts to
effect the orderly
and efficient transfer of such substitute documentation and records
to the
assuming party. The Trustee shall be entitled to be reimbursed from
the Master
Servicer (or the Trust if the Master Servicer is unable to fulfill
its
obligations hereunder) for all Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Account.
The Master Servicer shall enforce the obligation of the Servicer to
establish and maintain a Servicer Custodial Account in accordance
with the
Servicing Agreement, with
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records to be kept with respect thereto on a Mortgage Loan by
Mortgage Loan
basis, into which accounts shall be deposited within 48 hours (or
as of such
other time specified in the Servicing Agreement) of receipt all
collections of
principal and interest on any Mortgage Loan and with respect to any
REO Property
received by the Servicer, including Principal Prepayments,
Insurance Proceeds,
Liquidation Proceeds, Recoveries and Advances made from the
Servicer's own funds
(less servicing compensation as permitted by the Servicing
Agreement) and all
other amounts to be deposited in the Servicer Custodial Account.
The Master
Servicer is hereby authorized to make withdrawals from and deposits
to the
Servicer Custodial Account for purposes required or permitted by
this Agreement.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account, Servicer Custodial Account, Distribution Account
and Reserve
Account.
(a) Continuously from the date hereof until the principal and
interest
on all Mortgage Loans are paid in full, the Master Servicer shall
enforce the
obligations of the Servicer to collect all payments due under the
terms and
provisions of the Mortgage Loans when the same shall become due and
payable to
the extent such procedures shall be consistent with the Servicing
Agreement.
(b) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be an Eligible Account. The
Master
Servicer shall promptly upon receipt, deposit in the Master
Servicer Custodial
Account and retain therein any amounts which are required to be
deposited in the
Master Servicer Custodial Account by the Master Servicer.
(c) The Securities Administrator shall establish and maintain the
Distribution Account, into which the Master Servicer will deposit
on or prior to
11:00 AM New York time, on each Distribution Date (or, if the
Securities
Administrator is no longer the same Person as, or an Affiliate of,
the Master
Servicer, the Business Day preceding each Distribution Date), all
amounts on
deposit in the Master Servicer Custodial Account for distribution
to
Certificateholders. The Distribution Account shall be an Eligible
Account.
(d) On a daily basis within one Business Day of receipt, except as
otherwise specifically provided herein, the Master Servicer shall
deposit or
cause to be deposited into the Master Servicer Custodial Account
the following
payments and collections remitted to the Master Servicer by the
Servicer from
the Servicer Custodial Account pursuant to the Servicing Agreement
or otherwise
received by the Master Servicer in respect of the Mortgage Loans
subsequent to
the Cut-off Date (other than in respect of principal and interest
due on the
Mortgage Loans on or before the Cut-off Date) and the following
amounts required
to be deposited hereunder:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of
the Servicing Fee and any Incremental Interest;
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(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than
Insurance Proceeds to be (1) applied to the restoration or repair
of the
Mortgaged Property, (2) released to the Mortgagor in accordance
with
Customary Servicing Procedures or (3) required to be deposited to
the
Escrow Account pursuant to Section 3.10 and (B) any Insurance
Proceeds
released from the Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.09(e) in connection with any losses on
Permitted
Investments with respect to the Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the Servicer;
(vi) Periodic Advances made by the Servicer pursuant to the
Servicing
Agreement (or, if applicable, by the Trustee pursuant to Section
3.22) and
any Compensating Interest paid by the Servicer pursuant to the
Servicing
Agreement;
(vii) all Repurchase Prices, all Substitution Adjustment Amounts
and
all Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be
deposited, it may at any time withdraw such amount from the Master
Servicer
Custodial Account, any provision herein to the contrary
notwithstanding. All
funds required to be deposited in the Master Servicer Custodial
Account shall be
held by the Master Servicer in trust for the Certificateholders
until disbursed
in accordance with this Agreement or withdrawn in accordance with
Section 3.12.
(e) Each institution at which the Master Servicer Custodial Account
is
maintained shall invest the funds therein as directed in writing by
the Master
Servicer in Permitted Investments, which shall mature not later
than the
Business Day next preceding the Distribution Date (except that if
such Permitted
Investment is an obligation of the institution that maintains such
account, then
such Permitted Investment shall mature not later than such
Distribution Date)
and, in each case, shall not be sold or disposed of prior to its
maturity. All
such Permitted Investments shall be made in the name of the
Trustee, for the
benefit of the Certificateholders. All Master Servicer Custodial
Account
Reinvestment Income shall be for the benefit of the Master Servicer
as its
master servicing compensation and shall be remitted to the Master
Servicer
monthly as provided herein. The amount of any losses realized in
the Master
Servicer Custodial Account incurred in any such account in respect
of any such
investments shall promptly be deposited by the Master Servicer from
its own
funds in the Master Servicer Custodial Account. Each institution at
which the
Distribution Account is maintained shall invest the funds therein
if directed in
writing by the Securities Administrator in Permitted Investments
that are
obligations of the institution that maintains the Distribution
Account, which
shall mature on the Distribution Date and shall not be sold or
disposed of prior
to its maturity. All such Permitted Investments shall be made in
the name of the
Trustee, for the benefit of the
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Certificateholders. All income and gains net of any losses realized
since the
preceding Distribution Date from Permitted Investments of funds in
the
Distribution Account shall be for the benefit of the Securities
Administrator as
compensation for its services hereunder and the amount of any
losses realized in
the Distribution Account in respect of any such Permitted
Investments shall
promptly be deposited by the Securities Administrator from its own
funds in the
Distribution Account.
(f) The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and the Rating Agencies of
any proposed
change of location of the Master Servicer Custodial Account not
later than 30
days after and not more that 45 days prior to any change thereof.
The Securities
Administrator shall give notice to the Depositor, the Trustee, the
Master
Servicer and the Rating Agencies of any proposed change of the
location of the
Distribution Account maintained by the Securities Administrator not
later than
30 days after and not more than 45 days prior to any change
thereof. The
creation of the Master Servicer Custodial Account and the
Distribution Account
shall be evidenced by a certification substantially in the form of
Exhibit F
hereto.
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Account.
To the extent required by the Servicing Agreement and by the
related
Mortgage Note and not violative of current law, the Master Servicer
shall
require the Servicer to establish and maintain one or more escrow
accounts
(collectively, the "Escrow Account") and deposit and retain therein
all
collections from the Mortgagors (or Advances by the Servicer) for
the payment of
taxes, assessments, hazard insurance premiums or comparable items
for the
account of the Mortgagors. Nothing herein shall require the Master
Servicer to
compel the Servicer to establish the Escrow Account in violation of
applicable
law.
Section 3.11 Access of Securities Administrator and Trustee to
Certain
Documentation and Information Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation
of
the Servicer to afford the Securities Administrator and the Trustee
reasonable
access to all records and documentation regarding the Mortgage
Loans and all
accounts, insurance information and other matters relating to this
Agreement,
such access being afforded without charge, but only upon reasonable
request and
during normal business hours at the office designated by the Master
Servicer or
the Servicer.
Section 3.12 Permitted Withdrawals from the Master Servicer
Custodial
Account and the Distribution Account.
(a) The Securities Administrator shall withdraw funds from the
Distribution Account for distributions to Certificateholders in the
manner
specified in this Agreement. In addition, the Master Servicer may
from time to
time make withdrawals from the Master Servicer Custodial Account
for the
following purposes:
(i) to pay to the Servicer (to the extent not previously retained
by
it) the Servicing Fee to which it is entitled pursuant to the
Servicing
Agreement and any
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Incremental Interest and to pay itself any Master Servicer
Custodial
Account Reinvestment Income;
(ii) to pay the Securities Administrator and the Trustee any
amounts
due to the Securities Administrator and the Trustee under this
Agreement
(including, but not limited to, all amounts provided for under
Section
9.11, other than the amounts provided for in the first sentence of
Section
9.11);
(iii) to reimburse the Servicer (or, if applicable, the Trustee)
for
unreimbursed Advances made pursuant to the Servicing Agreement (or
in the
case of the Trustee, pursuant to Section 3.22), such right of
reimbursement
pursuant to this clause (iii) being limited to amounts received on
the
Mortgage Loans in respect of which any such Advance was made;
(iv) to reimburse the Servicer for any Nonrecoverable Advance
previously made, such right of reimbursement pursuant to this
clause (iv)
being limited first to amounts received on the Mortgage Loans in
respect of
which such Nonrecoverable Advance was made and then to amounts
received on
all the Mortgage Loans;
(v) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02, all
amounts
received thereon in error after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred by
any of them and reimbursable pursuant to this Agreement, including
but not
limited to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial Account
upon
termination of this Agreement pursuant to Section 10.01.
(b) On each Distribution Date, funds on deposit in the Distribution
Account shall be used to make payments on the Regular Certificates
and the Class
A-R Certificate as provided in Sections 5.01 and 5.02. The
Distribution Account
shall be cleared and terminated upon termination of this Agreement
pursuant to
Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other Insurance.
For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the Servicing Agreement to
maintain or cause to
be maintained fire, flood and hazard insurance with extended
coverage customary
in the area where the Mortgaged Property is located in accordance
with the
Servicing Agreement. It is understood and agreed that such
insurance provided
for in this Section 3.13 shall be with insurers meeting the
eligibility
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requirements set forth in the Servicing Agreement and that no
earthquake or
other additional insurance is to be required of any Mortgagor or to
be
maintained on property acquired in respect of a defaulted loan,
other than
pursuant to such applicable laws and regulations as shall at any
time be in
force and as shall require such additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
Master Servicer, or by the Servicer, under any insurance policies
(other than
amounts to be applied to the restoration or repair of the property
subject to
the related Mortgage or released to the Mortgagor in accordance
with the
Servicing Agreement) shall be deposited into the Master Servicer
Custodial
Account, subject to withdrawal pursuant to Section 3.12. Any cost
incurred by
the Master Servicer or the Servicer in maintaining any such
insurance if the
Mortgagor defaults in its obligation to do so shall be added to the
amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so
permit;
provided, however, that the addition of any such cost shall not be
taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer
or the
Servicer pursuant to Sections 3.08 and 3.09.
Section 3.14 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the Servicing
Agreement) cause the Servicer to prepare and present on behalf of
the Trustee
and the Certificateholders all claims under the Insurance Policies
and take such
actions (including the negotiation, settlement, compromise or
enforcement of the
insured's claim) as shall be necessary to realize recovery under
such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to the
Servicer and
remitted to the Master Servicer) in respect of such policies, bonds
or contracts
shall be promptly deposited in the Master Servicer Custodial
Account upon
receipt, except that any amounts realized that are to be applied to
the repair
or restoration of the related Mortgaged Property as a condition
precedent to the
presentation of claims on the related Mortgage Loan to the insurer
under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the Servicing Agreement and to the extent
Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer
shall cause the Servicer to enforce such clauses in accordance with
the
Servicing Agreement. If applicable law prohibits the enforcement of
a
due-on-sale clause or such clause is otherwise not enforced in
accordance with
the Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the
original Mortgagor may be released from liability in accordance
with the
Servicing Agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Master Servicer shall cause the Servicer (to the extent
required under the Servicing Agreement) to foreclose upon or
otherwise
comparably convert the ownership of Mortgaged Properties securing
such of the
Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent
payments, all
in accordance with the Servicing Agreement.
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(b) With respect to any REO Property, the deed or certificate of
sale
shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the
Certificateholders. The
Master Servicer shall enforce the obligation of the Servicer, to
the extent
provided in the Servicing Agreement, to (i) cause the name of the
Trust to be
placed on the title to such REO Property and (ii) ensure that the
title to such
REO Property references this Agreement. The Master Servicer shall,
to the extent
provided in the Servicing Agreement, cause the Servicer to sell any
REO Property
as expeditiously as possible and in accordance with the provisions
of this
Agreement and the Servicing Agreement, as applicable. Pursuant to
its efforts to
sell such REO Property, the Master Servicer shall cause the
Servicer to protect
and conserve such REO Property in the manner and to the extent
required by the
Servicing Agreement, subject to the REMIC Provisions.
(c) The Master Servicer shall, to the extent required by the
Servicing
Agreement, cause the Servicer to deposit all funds collected and
received in
connection with the operation of any REO Property in the Servicer
Custodial
Account.
(d) The Servicer, upon the final disposition of any REO Property,
shall be entitled to reimbursement for any related unreimbursed
Periodic
Advances and other unreimbursed advances as well as any unpaid
Servicing Fees
from Liquidation Proceeds received in connection with the final
disposition of
such REO Property; provided that any such unreimbursed Periodic
Advances as well
as any unpaid Servicing Fees may be reimbursed or paid, as the case
may be,
prior to final disposition, out of any net rental income or other
net amounts
derived from such REO Property.
(e) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Servicer as provided above
shall be
deposited in the Servicer Custodial Account on or prior to the
Determination
Date in the month following receipt thereof and be remitted by wire
transfer in
immediately available funds to the Master Servicer for deposit into
the Master
Servicer Custodial Account.
In the event that the Trust Estate acquires any Mortgaged Property
as
aforesaid or otherwise in connection with a default or imminent
default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of
the Servicer
to dispose of such Mortgaged Property within the time period
specified in the
Servicing Agreement unless the Servicer shall have applied for and
received an
extension of such period from the Internal Revenue Service, in
which case the
Trust Estate may continue to hold such Mortgaged Property for the
period of such
extension. Notwithstanding any other provision of this Agreement,
no Mortgaged
Property acquired by the Trust shall be rented (or allowed to
continue to be
rented) or otherwise used for the production of income by or on
behalf of the
Trust in such a manner or pursuant to any terms that would (i)
cause such
Mortgaged Property to fail to qualify as "foreclosure property"
within the
meaning of Section 860G(a)(8) of the Code or (ii) subject the REMIC
created
hereunder to the imposition of any federal, state or local income
taxes on the
income earned from such Mortgaged Property under Section 860G(c) of
the Code or
otherwise, unless the Master Servicer or Servicer, as applicable,
has agreed to
indemnify and hold harmless the Trust with respect to the
imposition of any such
taxes.
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Section 3.17 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the
Master Servicer or the Servicer of a notification that payment in
full will be
escrowed in a manner customary for such purposes, the Master
Servicer or the
Servicer will immediately notify the Trustee (or, at the direction
of the
Trustee, the Custodian) by delivering, or causing to be delivered,
two copies
(one of which will be returned to the Servicer with the Mortgage
File) of a
Request for Release (which may be delivered in an electronic format
acceptable
to the Trustee, the related Servicer and the Master Servicer). Upon
receipt of
such request, the Trustee or the Custodian, as applicable, shall
within seven
Business Days release the related Mortgage File to the Master
Servicer or the
Servicer. The Trustee shall at the Master Servicer's or the
Servicer's direction
execute and deliver to the Master Servicer or the Servicer the
request for
reconveyance, deed of reconveyance or release or satisfaction of
mortgage or
such instrument releasing the lien of the Mortgage, in each case
provided by the
Master Servicer or the Servicer, together with the Mortgage Note
with written
evidence of cancellation thereon. If the Mortgage has been recorded
in the name
of MERS or its designee, the Master Servicer shall enforce the
Servicer's
obligation under the Servicing Agreement to take all necessary
action to reflect
the release of the Mortgage on the records of MERS. Expenses
incurred in
connection with any instrument of satisfaction or deed of
reconveyance shall be
chargeable to the related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose
collection under
any policy of flood insurance, any fidelity bond or errors or
omissions policy,
or for the purposes of effecting a partial release of any Mortgaged
Property
from the lien of the Mortgage or the making of any corrections to
the Mortgage
Note or the Mortgage or any of the other documents included in the
Mortgage
File, the Trustee or the Custodian, as applicable, shall, upon
delivery to the
Trustee (or, at the direction of the Trustee, the Custodian) of a
Request for
Release signed by a Master Servicing Officer or a Servicing
Officer, release the
Mortgage File within seven Business Days to the Master Servicer or
the Servicer.
Subject to the further limitations set forth below, the Master
Servicer or the
Servicer shall cause the Mortgage Files so released to be returned
to the
Trustee or the Custodian, as applicable, when the need therefor no
longer
exists, unless the Mortgage Loan is liquidated and the proceeds
thereof are
deposited in the Servicer Custodial Account, in which case the
Servicer shall
deliver to the Trustee or the Custodian, as applicable, a Request
for Release,
signed by a Servicing Officer.
If the Master Servicer or the Servicer at any time seeks to
initiate a
foreclosure proceeding in respect of any Mortgaged Property as
authorized by
this Agreement or the Servicing Agreement, the Master Servicer or
the Servicer
shall deliver or cause to be delivered to the Trustee, for
signature, as
appropriate, any court pleadings, requests for trustee's sale or
other documents
necessary to effectuate such foreclosure or any legal action
brought to obtain
judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain
a deficiency judgment or to enforce any other remedies or rights
provided by the
Mortgage Note or the Mortgage or otherwise available at law or in
equity.
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Section 3.18 Documents, Records and Funds in Possession of the
Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall cause the Servicer to transmit to the Trustee or the
Custodian on
behalf of the Trustee as required by this Agreement and the
Servicing Agreement
all documents and instruments in respect of a Mortgage Loan coming
into the
possession of the Servicer from time to time and shall account
fully to the
Trustee for any funds received by the Master Servicer or the
Servicer or which
otherwise are collected by the Master Servicer or the Servicer as
Liquidation
Proceeds, Recoveries or Insurance Proceeds in respect of any
Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control
of, the
Master Servicer or the Servicer in respect of any Mortgage Loans,
whether from
the collection of principal and interest payments or from
Liquidation Proceeds,
including but not limited to, any funds on deposit in the Master
Servicer
Custodial Account or the Servicer Custodial Account, shall be held
by the Master
Servicer or the Servicer for and on behalf of the Trustee and shall
be and
remain the sole and exclusive property of the Trustee, subject to
the applicable
provisions of this Agreement and the Servicing Agreement. The
Master Servicer
also agrees that it shall not knowingly create, incur or subject
any Mortgage
File or any funds that are deposited in the Master Servicer
Custodial Account or
the Escrow Account, or any funds that otherwise are or may become
due or payable
to the Trustee for the benefit of the Certificateholders, to any
claim, lien,
security interest, judgment, levy, writ of attachment or other
encumbrance
created by the Master Servicer, or assert by legal action or
otherwise any claim
or right of setoff against any Mortgage File or any funds collected
on, or in
connection with, a Mortgage Loan, except, however, that the Master
Servicer
shall be entitled to set off against and deduct from any such funds
any amounts
that are properly due and payable to the Master Servicer under this
Agreement.
Section 3.19 Master Servicer Compensation.
Master servicing compensation in the form of Master Servicer
Custodial
Account Reinvestment Income shall be remitted to or retained by the
Master
Servicer pursuant to Section 3.12. The Master Servicer shall be
required to pay
all expenses incurred by it in connection with its master servicing
activities
hereunder and shall not be entitled to reimbursement therefor
except as
specifically provided in this Agreement.
Section 3.20 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Securities Administrator
(and
the Securities Administrator will forward to the Trustee and each
Rating
Agency), no later than March 15 following the end of each calendar
year
commencing with March 2006, an Officer's Certificate, signed by two
officers of
the Master Servicer, stating, as to the signers thereof, that (a) a
review of
the activities of the Master Servicer during the preceding calendar
year and of
the performance of the Master Servicer under this Agreement or
similar
agreements has been made under such officer's supervision, and (b)
to the best
of such officer's knowledge, based on such review, the Master
Servicer has
fulfilled all its obligations under this Agreement throughout such
year, or, if
there has been a default in the fulfillment of any such obligation,
specifying
each such default known to such officer and the nature and status
thereof.
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In addition, the Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a similar
statement to the
Securities Administrator relating to compliance with the Servicing
Agreement.
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The Master Servicer shall enforce the Servicer's obligation under
the
Servicing Agreement to provide a report to the Securities
Administrator, as
required to be provided each year pursuant to the Servicing
Agreement, prepared
by a firm of independent public accountants (who may also render
other services
to such Servicer or any affiliate thereof) which is a member of the
American
Institute of Certified Public Accountants to the effect that such
firm has, with
respect to the Servicer's overall servicing operations, examined
such operations
in accordance with the requirements of the Uniform Single
Attestation Program
for Mortgage Bankers, and stating such firm's conclusions relating
thereto.
Section 3.22 Advances.
The Master Servicer shall enforce the obligations of the Servicer
to
make Periodic Advances in accordance with the Servicing Agreement.
The Servicer
shall be entitled to be reimbursed from the Servicer Custodial
Account for all
Advances of its own funds made pursuant to the Servicing Agreement.
Based upon
information set forth in the servicer reports, the Master Servicer
shall inform
the Securities Administrator of the amount of the Periodic Advance
to be made by
the Servicer no later than the related Servicer Remittance Date. If
the Servicer
fails to make any required Periodic Advance pursuant to the
Servicing Agreement,
the Trustee shall (i) unless the Trustee determines that such
Periodic Advance
would not be recoverable in its good faith business judgment, make
such Periodic
Advance not later than the Business Day preceding the related
Distribution Date
and (ii) to the extent such failure leads to the termination of the
Servicer and
until such time as a successor Servicer is appointed, continue to
make Periodic
Advances required pursuant to the Servicing Agreement for any
Distribution Date,
within the same time frame set forth in (i) above, unless the
Trustee determines
(to the extent provided in the Servicing Agreement) that such
Periodic Advance
would not be recoverable.
Section 3.23 Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and the Master Servicer shall
reasonably cooperate with the Depositor in connection with the
Trust's
satisfying its reporting requirements under the Exchange Act.
Without limiting
the generality of the foregoing, the Securities Administrator shall
prepare on
behalf of the Trust any monthly Current Reports on Form 8-K (each,
a "Monthly
Form 8-K") and Annual Reports on Form 10-K (each, a "Form 10-K")
customary for
similar securities as required by the Exchange Act and the rules
and regulations
of the Securities and Exchange Commission thereunder, and the
Securities
Administrator shall sign and file (via the Securities and Exchange
Commission's
Electronic Data Gathering and Retrieval System) such Forms (other
than any
Annual Report on Form 10-K, which shall be signed by the Master
Servicer) on
behalf of the Trust.
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(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date,
including a copy of
the monthly statement to Certificateholders delivered pursuant to
Section
5.04(b) (each, a "Distribution Date Statement") for such
Distribution Date as an
exhibit thereto. On or prior to March 30th of each year (or such
earlier date as
may be required by the Exchange Act and the rules and regulations
of the
Securities and Exchange Commission), commencing in the calendar
year following
the date of this Agreement, the Securities Administrator shall file
a Form 10-K,
in substance as required by applicable law or applicable Securities
and Exchange
Commission staff's interpretations. Such Form 10-K shall include as
exhibits the
Master Servicer's and the Servicer's annual statement of compliance
described
under Section 3.20 and the accountant's report referenced under
Section 3.21, in
each case, to the extent they have been timely delivered to the
Securities
Administrator. If they are not so timely delivered, the Securities
Administrator
shall file an amended Form 10-K including such documents as
exhibits reasonably
promptly after they are delivered to the Securities Administrator.
The
Securities Administrator shall have no liability with respect to
any failure to
properly prepare or file such periodic reports resulting from or
relating to the
Securities Administrator's inability or failure to obtain any
information not
resulting from its own negligence, willful misconduct or bad faith.
The Form
10-K shall also include a certification in the form attached hereto
as Exhibit M
(the "Certification"), which shall be signed by a senior officer of
the Master
Servicer in charge of the servicing functions. The Master Servicer
shall deliver
the Certification to the Securities Administrator three (3)
Business Days prior
to the latest date on which the Form 10-K may be timely filed. The
Securities
Administrator, the Depositor and the Master Servicer shall
reasonably cooperate
to enable the Securities and Exchange Commission requirements with
respect to
the Trust to be met in the event that the Securities and Exchange
Commission
issues additional interpretive guidelines or promulgates rules or
regulations,
or in the event of any other change of law that would require
reporting
arrangements or the allocation of responsibilities with respect
thereto, as
described in this Section 3.23, to be conducted or allocated in a
different
manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and
deliver to the
Master Servicer a certification (in the form attached hereto as
Exhibit N) for
the benefit of the Master Servicer and its officers, directors and
affiliates
(provided, however, that the Securities Administrator shall not
undertake an
analysis of the accountant's report attached as an exhibit to the
Form 10-K). In
addition, the Securities Administrator shall indemnify and hold
harmless the
Master Servicer, each person, if any, who "controls" the Master
Servicer within
the meaning of the 1933 Act, as amended and their respective
officers,
directors, agents and affiliates (collectively, the "Master
Servicer Indemnified
Parties") from and against any losses, damages, penalties, fines,
forfeitures,
reasonable and necessary legal fees and related costs, judgments
and other costs
and expenses arising out of or based upon any inaccuracy in the
certification
provided by the Securities Administrator pursuant to this Section
3.23(c), any
breach by the Securities Administrator or any of its officers,
directors, agents
or affiliates of its obligations under this Section 3.23(c) or any
material
misstatements or omission contained in the certification delivered
pursuant to
this Section 3.23(c) or the Securities Administrator's negligence,
bad faith or
willful misconduct in connection therewith. If the indemnification
provided for
herein is unavailable or insufficient to hold harmless the Master
Servicer
Indemnified Parties, then the Securities Administrator agrees that
it shall
contribute to the amount paid or payable by such Master Servicer
Indemnified
Parties as a result of the losses, claims, damages or liabilities
of such Master
Servicer Indemnified
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Parties in such proportion as is appropriate to reflect the
relative fault of
such Master Servicer Indemnified Parties on the one hand and the
Securities
Administrator on the other in connection with a breach of the
Securities
Administrator's obligations under this Section 3.23(c), any
material
misstatement or omission contained in the certification delivered
pursuant to
this Section 3.23(c) or the Securities Administrator's negligence,
bad faith or
willful misconduct in connection therewith. The Master Servicer
hereby
acknowledges and agrees that the Depositor and the Securities
Administrator are
relying on the Master Servicer's performance of its obligations
under Sections
3.20 and 3.21 in order to perform their respective obligations
under this
Section 3.23.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Master Servicer shall enforce the obligation
of the
Servicer to provide the certification required pursuant to each of
the Servicing
Agreement.
(e) Upon any filing with the Securities and Exchange Commission,
the
Securities Administrator shall promptly deliver to the Depositor a
copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the
Securities
Administrator is obligated to file reports on Form 8-K or 10-K
pursuant to
paragraph (b) of this Section. Upon request of the Depositor, the
Securities
Administrator shall prepare, execute and file with the Securities
and Exchange
Commission a Form 15 Suspension Notification with respect to the
Trust, and
thereafter there shall be no further obligations under paragraphs
(a) through
(e) of this Section commencing with the fiscal year in which the
Form 15 is
filed (other than the obligations to be performed in such fiscal
year that
relate back to the prior fiscal year); provided, however, that at
any time after
the filing of a Form 15 Suspension Notification, if the number of
Certificateholders of record exceeds the number set forth in
Section 15(d) of
the Exchange Act or the regulations promulgated pursuant thereto
which would
cause the Trust to again become subject to the reporting
requirements of the
Exchange Act, the Securities Administrator shall recommence
preparing and filing
reports on Form 8-K and 10-K as required pursuant to this Section
and the
parties hereto will again have the obligations set forth in
paragraphs (a)
through (e) of this Section.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 18th
calendar day of such month (or if such day is not a Business Day,
the following
Business Day, the Master Servicer shall deliver to the Securities
Administrator
a Master Servicer's Certificate (in substance and format mutually
acceptable to
the Master Servicer and the Securities Administrator) certified by
a Master
Servicing Officer setting forth the information necessary in order
for the
Securities Administrator to perform its obligations under this
Agreement. The
Securities Administrator may conclusively rely upon the information
contained in
a Master
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Servicer's Certificate for all purposes hereunder and shall have no
duty to
verify or re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based solely
on
the information in the Master Servicer's Certificate, the
Securities
Administrator shall distribute out of the Distribution Account (to
the extent
funds are available therein) to each Certificateholder of record on
the related
Record Date (other than as provided in Section 10.01 respecting the
final
distribution) (a) by check mailed to such Certificateholder
entitled to receive
a distribution on such Distribution Date at the address appearing
in the
Certificate Register, or (b) upon written request by the Holder of
a Certificate
(other than a Residual Certificate), by wire transfer or by such
other means of
payment as such Certificateholder and the Securities Administrator
shall agree
upon, such Certificateholder's Percentage Interest in the amount to
which the
related Class of Certificates is entitled in accordance with the
priorities set
forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor,
the
Master Servicer, the Securities Administrator or the Trustee shall
in any way be
responsible or liable to Holders of any Class of Certificates in
respect of
amounts properly previously distributed on any such Class. Amounts
distributed
with respect to any Class of Certificates shall be applied first to
the
distribution of interest thereon and then to principal thereon.
Section 5.02 Priorities of Distributions.
(a) On each Distribution Date, based solely on the information
contained in the Master Servicer's Certificate, the Securities
Administrator
shall withdraw from the Distribution Account (to the extent funds
are available
therein), the Pool Distribution Amount, in an amount as specified
in written
notice received by the Securities Administrator from the Master
Servicer
pursuant to Section 4.01 hereof, and shall apply such funds to
distributions on
the Certificates. Distributions shall be made on the Certificates
in the
following order of priority and to the extent of such funds:
(i) to each Class of Senior Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
and any
shortfall being allocated among such Classes in proportion to the
amount of
the Interest Distribution Amount that would have been distributed
in the
absence of such shortfall;
(ii) to the Senior Certificates, in an aggregate amount up to the
Senior Principal Distribution Amount, such distribution to be
allocated
among such Classes in accordance with Section 5.02(b);
(iii) to each Class of Subordinate Certificates, subject to
paragraph
(d) below, in the following order of priority:
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(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for
such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until
the Class Certificate Balance thereof has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for
such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until
the Class Certificate Balance thereof has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for
such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until
the Class Certificate Balance thereof has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for
such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until
the Class Certificate Balance thereof has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for
such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until
the Class Certificate Balance thereof has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for
such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until
the Class Certificate Balance thereof has been reduced to zero; and
(iv) to the Holder of the Class A-R Certificate, any remaining Pool
Distribution Amount.
No Class of Certificates will be entitled to any distributions with
respect to the amount payable pursuant to clause (ii) of the
definition of
"Interest Distribution Amount" after its Class Certificate Balance
has been
reduced to zero.
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All distributions in respect of the Interest Distribution Amount
for a
Class of Certificates will be applied first with respect to the
amount payable
pursuant to clause (i) of the definition of "Interest Distribution
Amount," and
second with respect to the amount payable pursuant to clause (ii)
of such
definition.
On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amounts received with respect to the
Mortgage Loans
sequentially to the Classes of Certificates then outstanding which
bore the loss
to which such Reimbursement Amount relates beginning with the most
senior of
such Classes of Certificates, up to, with respect to each Class,
the amount of
loss borne by such Class. Any Reimbursement Amount remaining after
the
application described in the preceding sentence shall be included
in the Pool
Distribution Amount.
(b) With respect to the Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion
Date, the amount distributable to the Senior Certificates pursuant
to Section
5.02(a)(ii) for such Distribution Date, will be distributed as
principal,
sequentially, as follows:
first, to the Class A-R Certificate, until its Class Certificate
Balance has been reduced to zero; and
second, to the Class A-1 Certificates and Class A-2 Certificates,
pro
rata, until their Class Certificate Balances have been reduced to
zero.
(c) On each Distribution Date, Accrued Certificate Interest for
each
Class of Certificates for such Distribution Date shall be reduced
by such Class'
pro rata share, based on such Class' Interest Distribution Amount
for such
Distribution Date, without taking into account the allocation made
by this
Section 5.02(c), of (A) Non-Supported Interest Shortfalls, (B) on
and after the
Senior Credit Support Depletion Date, any other Realized Loss on
the Mortgage
Loans allocable to interest and (C) Relief Act Reductions incurred
on the
Mortgage Loans during the calend
