EXHIBIT 4
BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor,
BANK OF AMERICA, N.A.,
as Servicer,
and
WELLS FARGO BANK, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated November 29, 2005
--------------------------------------------------------------
Banc of America Alternative Loan Trust 2005-11
Mortgage Pass-Through Certificates
Series 2005-11
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms.................................................
Section 1.02 Interest
Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans..................................
Section 2.02 Acceptance by the Trustee of the
Mortgage Loans...............
Section 2.03 Representations, Warranties and
Covenants of the Servicer.....
Section 2.04 Representations and Warranties of
the Depositor as to the
Mortgage Loans...............................................
Section 2.05 Designation of Interests in the
REMICs........................
Section 2.06 Designation of Start-up
Day...................................
Section 2.07 REMIC Certificate Maturity
Date...............................
Section 2.08 Execution and Delivery of
Certificates........................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage
Loans............................
Section 3.02 Subservicing; Enforcement of the
Obligations of Servicer......
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance.................
Section 3.04 Access to Certain
Documentation...............................
Section 3.05 Maintenance of Primary Insurance
Policy; Claims;
Collections of BPP Mortgage Loan Payments....................
Section 3.06 Rights of the Depositor and the
Trustee
in Respect of the Servicer...................................
Section 3.07 Trustee to Act as
Servicer....................................
Section 3.08 Collection of Mortgage Loan
Payments; Servicer
Custodial Account; Certificate Account and Reserve Fund......
Section 3.09 Collection of Taxes, Assessments
and
Similar Items; Escrow Accounts...............................
Section 3.10 Access to Certain Documentation
and Information
Regarding the Mortgage Loans.................................
Section 3.11 Permitted Withdrawals from the
Servicer Custodial Account
and Certificate Account......................................
Section 3.12 Maintenance of Hazard
Insurance...............................
Section 3.13 Enforcement of Due-On-Sale
Clauses; Assumption Agreements.....
Section 3.14 Realization upon Defaulted
Mortgage Loans; REO Property.......
Section 3.15 Trustee to Cooperate; Release of
Mortgage Files...............
Section 3.16 Documents, Records and Funds in
Possession of the Servicer to
Be Held for the Trustee......................................
Section 3.17 Servicing
Compensation........................................
Section 3.18 Annual Statement as to
Compliance.............................
Section 3.19 Annual Independent Public
Accountants' Servicing Statement;
Financial Statements.........................................
Section 3.20
Advances......................................................
Section 3.21 Modifications, Waivers, Amendments
and Consents...............
Section 3.22 Reports to the Securities and
Exchange Commission.............
Section 3.23 Buy-Down Account; Application of
Buy-Down Funds...............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's
Certificate........................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions.................................................
Section 5.02 Priorities of
Distributions...................................
Section 5.03 Allocation of
Losses..........................................
Section 5.04 Statements to
Certificateholders..............................
Section 5.05 Tax Returns and Reports to
Certificateholders.................
Section 5.06 Tax Matters
Person............................................
Section 5.07 Rights of the Tax Matters Person
in Respect of the Trustee....
Section 5.08 REMIC Related
Covenants.......................................
Section 5.09 Determination of
LIBOR........................................
Section 5.10 Grantor Trust
Administration..................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates..............................................
Section 6.02 Registration of Transfer and
Exchange of Certificates.........
Section 6.03 Mutilated, Destroyed, Lost or
Stolen Certificates.............
Section 6.04 Persons Deemed
Owners.........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the
Depositor and the Servicer.......
Section 7.02 Merger or Consolidation of the
Depositor or the Servicer.......
Section 7.03 Limitation on Liability of the
Depositor,
the Servicer and Others.......................................
Section 7.04 Depositor and Servicer Not to
Resign..........................
Section 7.05 Assignment or Delegation of Duties
by the Servicer............
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default.............................................
Section 8.02 Remedies of
Trustee...........................................
Section 8.03 Directions by Certificateholders
and Duties
of Trustee During Event of Default...........................
Section 8.04 Action upon Certain Failures of
the
Servicer and upon Event of Default...........................
Section 8.05 Trustee to Act; Appointment of
Successor......................
Section 8.06 Notification to
Certificateholders............................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of
Trustee.............................................
Section 9.02 Certain Matters Affecting the
Trustee.........................
Section 9.03 Trustee Not Liable for
Certificates or Mortgage Loans.........
Section 9.04 Trustee May Own
Certificates..................................
Section 9.05 Eligibility Requirements for
Trustee..........................
Section 9.06 Resignation and Removal of
Trustee............................
Section 9.07 Successor
Trustee.............................................
Section 9.08 Merger or Consolidation of
Trustee............................
Section 9.09 Appointment of Co-Trustee or
Separate Trustee.................
Section 9.10 Authenticating
Agents.........................................
Section 9.11 Trustee's Fees and
Expenses...................................
Section 9.12 Appointment of
Custodian......................................
Section 9.13 Paying
Agents.................................................
Section 9.14 Limitation of
Liability.......................................
Section 9.15 Trustee May Enforce Claims Without
Possession
of Certificates..............................................
Section 9.16 Suits for
Enforcement.........................................
Section 9.17 Waiver of Bond
Requirement....................................
Section 9.18 Waiver of Inventory, Accounting
and Appraisal Requirement.....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by
the Depositor or
Liquidation of All Mortgage Loans............................
Section 10.02 Additional Termination
Requirements...........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment.....................................................
Section 11.02 Recordation of
Agreement......................................
Section 11.03 Limitation on Rights of
Certificateholders....................
Section 11.04 Governing
Law.................................................
Section 11.05
Notices.......................................................
Section 11.06 Severability of
Provisions....................................
Section 11.07 Certificates Nonassessable
and Fully Paid.....................
Section 11.08 Access to List of
Certificateholders..........................
Section 11.09
Recharacterization............................................
EXHIBITS
Exhibit A-1-CB-1 - Form of Face of Class 1-CB-1
Certificate
Exhibit A-1-CB-2 - Form of Face of Class 1-CB-2
Certificate
Exhibit A-1-CB-3 - Form of Face of Class 1-CB-3
Certificate
Exhibit A-1-CB-4 - Form of Face of Class 1-CB-4
Certificate
Exhibit A-1-CB-5 - Form of Face of Class 1-CB-5
Certificate
Exhibit A-1-CB-6 - Form of Face of Class 1-CB-6
Certificate
Exhibit A-1-CB-7 - Form of Face of Class 1-CB-7
Certificate
Exhibit A-1-CB-8 - Form of Face of Class 1-CB-8
Certificate
Exhibit A-1-CB-R - Form of Face of Class 1-CB-R
Certificate
Exhibit A-2-CB-1 - Form of Face of Class 2-CB-1
Certificate
Exhibit A-3-CB-1 - Form of Face of Class 3-CB-1
Certificate
Exhibit A-CB-IO - Form of Face of Class CB-IO
Certificate
Exhibit A-CB-PO - Form of Face of Class CB-PO
Certificate
Exhibit A-4-A-1 - Form of Face of Class 4-A-1
Certificate
Exhibit A-4-A-2 - Form of Face of Class 4-A-2
Certificate
Exhibit A-4-A-3 - Form of Face of Class 4-A-3
Certificate
Exhibit A-4-A-4 - Form of Face of Class 4-A-4
Certificate
Exhibit A-4-A-5 - Form of Face of Class 4-A-5
Certificate
Exhibit A-4-A-6 - Form of Face of Class 4-A-6
Certificate
Exhibit A-4-IO - Form of Face of Class 4-IO
Certificate
Exhibit A-4-PO - Form of Face of Class 4-PO
Certificate
Exhibit B-1 -
Form of Face of Class
B-1 Certificate
Exhibit B-2 -
Form of Face of Class
B-2 Certificate
Exhibit B-3 -
Form of Face of Class
B-3 Certificate
Exhibit B-4 -
Form of Face of Class
B-4 Certificate
Exhibit B-5 -
Form of Face of Class
B-5 Certificate
Exhibit B-6 -
Form of Face of Class
B-6 Certificate
Exhibit C
- Form of Reverse of
all Certificates
Exhibit D-1 -
Mortgage Loan Schedule
(Loan Group 1)
Exhibit D-2 -
Mortgage Loan Schedule
(Loan Group 2)
Exhibit D-3 -
Mortgage Loan Schedule
(Loan Group 3)
Exhibit D-4 -
Mortgage Loan Schedule
(Loan Group 4)
Exhibit E
- Request for Release
of Documents
Exhibit F
- Form of
Certification of Establishment of Account
Exhibit G-1 -
Form of Transferor's
Certificate
Exhibit G-2A - Form 1 of Transferee's
Certificate
Exhibit G-2B - Form 2 of Transferee's
Certificate
Exhibit H
- Form of Transferee
Representation Letter for ERISA
Restricted Certificates
Exhibit I
- Form of Affidavit
Regarding Transfer of Residual Certificate
Exhibit J
- Contents of
Servicing File
Exhibit K
- Form of Special
Servicing Agreement
Exhibit L -
List of Recordation
States
Exhibit M
- Form of Initial
Certification
Exhibit N
- Form of Final
Certification
Exhibit O
- Form of
Sarbanes-Oxley Certification
Exhibit P
- Form of Trustee's
Certification
Exhibit Q - Yield Maintenance Agreements
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated November 29, 2005,
is
hereby executed by and among BANC OF
AMERICA MORTGAGE SECURITIES, INC., as
depositor (together with its permitted
successors and assigns, the "Depositor"),
BANK OF AMERICA, N.A., as servicer
(together with its permitted successors and
assigns, the "Servicer"), and WELLS FARGO
BANK, N.A., as trustee (together with
its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the
Trust. The Trust Estate for federal
income tax purposes will be treated as
three separate real estate mortgage
investment conduits (the "Upper-Tier
REMIC," the "Middle-Tier REMIC" and the
"Lower-Tier REMIC," respectively, and each,
a "REMIC"). The Senior Certificates
(other than the Class CB-IO, Class CB-PO
and Class 1-CB-R Certificates and the
right of the Class 1-CB-1 and Class 4-A-1
Certificates to receive amounts from
the applicable Reserve Fund) are referred
to collectively as the "Regular
Certificates" and shall constitute "regular
interests" in the Upper-Tier REMIC.
The Class 1-CB-PO Component, Class 2-CB-PO
Component and Class 3-CB-PO Component
(the "Class CB-PO Components" or the "PO
Components"), the Class 1-CB-IO
Component, Class 2-CB-IO Component and
Class 3-CB-IO Component (the "Class CB-IO
Components" or the "IO Components" and,
collectively with the PO Components, the
"Components") shall also constitute
"regular interests" in the Upper-Tier REMIC.
The Uncertificated Upper-Tier Interests
shall also constitute "regular
interests" in the Upper-Tier REMIC. The
Uncertificated Middle-Tier Interests
shall constitute the "regular interests" in
the Middle-Tier REMIC. The
Uncertificated Lower-Tier Interests shall
constitute the "regular interests" in
the Lower-Tier REMIC. The Class R-U
Interest shall be the sole "residual
interest" in the Upper-Tier REMIC. The
Class R-M Interest shall be the sole
"residual interest" in the Middle-Tier
REMIC. The Class R-L Interest shall be
the sole "residual interest" in the
Lower-Tier REMIC. The Class 1-CB-R
Certificate shall represent ownership of
the Class R-U Interest, the Class R-M
Interest and the Class R-L Interest. The
portion of the Trust Estate consisting
of the Reserve Funds and the Yield
Maintenance Agreements and the right of the
Class 1-CB-1 and Class 4-A-1 Certificates
to receive amounts from the applicable
Reserve Fund shall not be assets of any
REMIC created hereunder, but rather
shall be assets of the Grantor Trust. The
assets of the Grantor Trust, the
Certificates, the Uncertificated
Middle-Tier Interests and the Uncertificated
Lower-Tier Interests will represent the
entire beneficial ownership interest in
the Trust. The "latest possible maturity
date" for federal income tax purposes
of all interests created hereby will be the
REMIC Certificate Maturity Date.
The following tables set forth characteristics of the
Certificates
and the Components, together with the
minimum denominations and integral
multiples in excess thereof in which the
Classes of Certificates shall be
issuable:
Initial Class
Integral
Certificate
Multiples in
Balance or
Pass-Through Minimum
Excess of
Classes(1) Notional Amount
Rate
Denomination Minimum
------------ -----------------
------------
------------
------------
Class 1-CB-1
$97,727,000.00 (1)
$1,000
$1
Class 1-CB-2
$97,727,000.00 (2)
$1,000,000
$1
Class 1-CB-3
$36,188,000.00 5.500%
$1,000
$1
Class 1-CB-4
$26,805,000.00 5.500%
$1,000
$1
Class 1-CB-5
$7,647,000.00 5.500%
$1,000
$1
Class 1-CB-6
$9,011,000.00 5.500%
$1,000
$1
Class 1-CB-7
$1,527,000.00 5.500%
$1,000
$1
Class 1-CB-8
$1,075,000.00 5.500%
$1,000
$1
Class 1-CB-R
$100.00 5.500%
$100
N/A
Class 2-CB-1
$86,674,000.00 6.000%
$1,000
$1
Class 3-CB-1
$51,972,000.00 6.000%
$1,000
$1
Class CB-IO
$10,663,081.00 (3)
$1,000,000
$1
Class CB-PO
$995,918.00 (4)
$25,000
$1
Class 4-A-1
$57,538,000.00 (5)
$1,000
$1
Class 4-A-2
$57,538,000.00 (6)
$1,000,000
$1
Class 4-A-3
$20,911,000.00 5.750%
$1,000
$1
Class 4-A-4
$883,000.00 5.750%
$1,000
$1
Class 4-A-5
$19,749,000.00 5.750%
$1,000
$1
Class 4-A-6
$4,068,000.00 5.750%
$1,000
$1
Class 4-IO
$3,433,480.00 5.500%
$1,000,000
$1
Class 4-PO
$1,409,203.00 (7)
$25,000
$1
Class B-1
$7,518,000.00 (8)
$25,000
$1
Class B-2
$3,757,000.00 (8)
$25,000
$1
Class B-3
$2,653,000.00 (8)
$25,000
$1
Class B-4
$1,326,000.00 (8)
$25,000
$1
Class B-5
$1,327,000.00 (8)
$25,000
$1
Class B-6
$1,326,290.00 (8)
$25,000
$1
Initial Component
Integral
Balance or
Multiples In
Component
Pass-Through
Minimum
Excess Of
Components
Notional Amount Rate
Denomination Minimum
-------------
---------------
-----------
------------
--------------
Class 1-CB-PO
$957,445.00
(9)
N/A
N/A
Class 2-CB-PO
$17,609.00
(9)
N/A
N/A
Class 3-CB-PO
$20,863.00
(9)
N/A
N/A
Class 1-CB-IO
$6,005,282.00
5.500%
N/A
N/A
Class 2-CB-IO
$3,283,602.00
5.500%
N/A
N/A
Class 3-CB-IO
$1,374,195.00
5.500%
N/A
N/A
------------
(1) During the initial Interest Accrual
Period, interest will accrue on the
Class 1-CB-1
Certificates at the rate of 4.68375% per annum. During each
Interest Accrual
Period thereafter, interest will accrue on the Class 1-CB-1
Certificates at a per
annum rate equal to (i) 0.490% plus (ii) LIBOR,
subject to a minimum
rate of 0.490% and a maximum rate of 5.500%.
(2) During the initial Interest Accrual
Period, interest will accrue on the
Class 1-CB-2
Certificates at the rate of 0.81625% per annum. During each
Interest Accrual
Period thereafter, interest will accrue on the Class 1-CB-2
Certificates at a per
annum rate equal to (i) 5.010% minus (ii) LIBOR,
subject to a minimum
rate of 0.000% and a maximum rate of 5.010%.
(3) The Class CB-IO Certificates are
Interest Only Certificates and will be
deemed for purposes of
distributions of interest to consist of three
Components described
in the table: the Class 1-CB-IO Component, the Class
2-CB-IO Component and
the Class 3-CB-IO Component. The Class CB-IO
Components are not
severable.
(4) The Class CB-PO Certificates are
Principal Only Certificates and will be
deemed for purposes of
distributions of principal to consist of three
Components as
described in the table: the Class 1-CB-PO Component, the Class
2-CB-PO Component and
the Class 3-CB-PO Component. The Class CB-PO
Components are not
severable.
(5) During the initial Interest Accrual
Period, interest will accrue on the
Class 4-A-1
Certificates at the rate of 4.79000% per annum. During each
Interest Accrual
Period thereafter, interest will accrue on the Class 4-A-1
Certificates at a per
annum rate equal to (i) 0.650% plus (ii) LIBOR,
subject to a minimum
rate of 0.650% and a maximum rate of 5.750%.
(6) During the initial Interest Accrual
Period, interest will accrue on the
Class 4-A-2
Certificates at the rate of 0.96000% per annum. During each
Interest Accrual
Period thereafter, interest will accrue on the Class 4-A-2
Certificates at a per
annum rate equal to (i) 5.100% minus (ii) LIBOR,
subject to a minimum
rate of 0.000% and a maximum rate of 5.100%.
(7) The Class 4-PO Certificates are
Principal Only Certificates and will not be
entitled to
distributions in respect of interest.
(8) Interest will accrue on the Class B
Certificates for each Distribution Date
at a per annum rate equal to
the weighted average (based on the Group
Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1,
5.500%, (ii) with respect to
Loan Group 2, 6.000%, (iii) with respect to Loan
Group 3, 6.000% and (iv)
with respect to Loan Group 4, 5.750%.
(9) The Class 1-CB-PO, Class 2-CB-PO and
Class 3-CB-PO Components are Principal
Only Components and will not
be entitled to distributions in respect of
interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accretion Termination Date: The earlier to occur of (A) the
Distribution Date following the
Distribution Date on which the Class Certificate
Balances of the Class 1-CB-1 and Class
1-CB-6 Certificates have been reduced to
zero or (B) the Senior Credit Support
Depletion Date.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class (other than the
Class CB-IO Certificates), one month's
interest accrued during the related
Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Class
Certificate Balance or Notional
Amount. For any Distribution Date and the
Class CB-IO Certificates, the sum of
the Accrued Component Interest for each
Class CB-IO Component.
Accrued Component Interest: For any Distribution Date and each
IO
Component, one month's interest accrued
during the related Interest Accrual
Period at the applicable Pass-Through Rate
on the applicable Notional Amount.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-off Date Pool Principal
Balance of the Mortgage Loans in such
Loan Group minus the sum of (i) all amounts
in respect of principal received in
respect of the Mortgage Loans in such Loan
Group (including, without limitation,
amounts received as Monthly Payments,
Periodic Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates on such
Distribution Date and all prior Distribution
Dates and (ii) the principal portion of all
Realized Losses (other than Debt
Service Reductions) incurred on the
Mortgage Loans in such Loan Group from the
Cut-off Date through the end of the month
preceding such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the
difference between the Adjusted Pool
Amount and the Adjusted Pool Amount (PO
Portion).
Adjusted Pool Amount (PO Portion): With respect to any
Distribution
Date and Loan Group, the sum of the
amounts, calculated as follows, with respect
to all Outstanding Mortgage Loans of such
Loan Group: the product of (i) the PO
Percentage for each such Mortgage Loan and
(ii) the remainder of (A) the Cut-off
Date Principal Balance of such Mortgage
Loan minus (B) the sum of (x) all
amounts in respect of principal received in
respect of such Mortgage Loan
(including, without limitation, amounts
received as Monthly Payments, Periodic
Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates of the
Related Group on such Distribution Date and
all prior Distribution Dates and (y)
the principal portion of any Realized Loss
(other than a Debt Service Reduction)
incurred on such Mortgage Loan from the
Cut-off Date through the end of the
month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Subordinate Percentage: As to any Distribution Date,
the
aggregate Class Certificate Balance of the
Class B Certificates divided by the
aggregate Pool Stated Principal Balance
(Non-PO Portion) for all of the Loan
Groups.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Amount Held for Future Distribution: As to any Distribution Date
and
Loan Group, the total of the amounts held
in the Servicer Custodial Account at
the close of business on the preceding
Determination Date on account of (i)
Principal Prepayments and Liquidation
Proceeds received or made on the Mortgage
Loans in such Loan Group in the month of
such Distribution Date and (ii)
payments which represent receipt of Monthly
Payments on the Mortgage Loans in
such Loan Group in respect of a Due Date or
Due Dates subsequent to the related
Due Date.
Ancillary Income: All prepayment premiums (if any), assumption
fees,
late payment charges and all other
ancillary income and fees with respect to the
Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value
determined in an appraisal obtained by the
originator at origination of such Mortgage
Loan and (b) the sales price for such
property, except that, in the case of
Mortgage Loans the proceeds of which were
used to refinance an existing mortgage
loan, the Appraised Value of the related
Mortgaged Property is the appraised value
thereof determined in an appraisal
obtained at the time of refinancing, or
(ii) the appraised value determined in
an appraisal made at the request of a
Mortgagor subsequent to origination in
order to eliminate the Mortgagor's
obligation to keep a Primary Insurance Policy
in force.
Assignment of
Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument
in recordable form, sufficient under
the laws of the jurisdiction wherein the
related Mortgaged Property is located
to give record notice of the sale of the
Mortgage.
Authenticating Agents:
As defined in Section 9.10.
Bank of America:
Bank of America, N.A., a national banking
association, or its successor in
interest.
Book-Entry
Certificate: Any Class
of Certificates other than the
Physical Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers
Protection Plan(R) addendum to the related
Mortgage Note whereby Bank of America
agrees to cancel (i) certain payments of
principal and interest on such Mortgage
Loan for up to twelve months upon the
disability or involuntary unemployment of
the Mortgagor or (ii) the outstanding
principal balance of the Mortgage Loan
upon the accidental death of the Mortgagor;
provided that such Borrowers
Protection Plan(R) has not been terminated
in accordance with its terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage
Loan,
the Monthly Covered Amount or Total Covered
Amount, if any, payable by Bank of
America pursuant to Section 5 of the
Mortgage Loan Purchase Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the
State of North Carolina, the State of
New York, the State of Minnesota, the state
in which the servicing offices of
the Servicer are located or any state in
which the Corporate Trust Office is
located are required or authorized by law
or executive order to be closed.
Buy-Down Account: The separate Eligible Account or Accounts
created
and maintained by the Servicer pursuant to
Section 3.23.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down
Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's
monthly payment during the initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the
monthly interest payments made by the
related Mortgagor will be less than the
scheduled monthly interest payments on
such Mortgage Loan, with the resulting
difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section
5.03(d).
Certificate: Any of the Banc of America Alternative Loan Trust
2005-11 Mortgage Pass-Through Certificates,
Series 2005-11 that are issued
pursuant to this Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Trustee pursuant to Section 3.08(c) in
the name of the Trustee for the
benefit of the Certificateholders and
designated "Wells Fargo Bank, N.A., in
trust for registered holders of Banc of
America Alternative Loan Trust 2005-11
Mortgage Pass-Through Certificates, Series
2005-11." The Certificate Account
shall be deemed to consist of six
sub-accounts; one for each Group, a fifth
sub-account referred to herein as the
Middle-Tier Certificate Sub-Account and a
sixth sub-account referred to herein as the
Upper-Tier Certificate Sub-Account.
Funds in the Certificate Account shall be
held in trust for the Holders of the
Certificates of such Group for the uses and
purposes set forth in this
Agreement.
Certificate Balance: With respect to any Certificate at any
date,
the maximum dollar amount of principal to
which the Holder thereof is then
entitled hereunder, such amount being equal
to the product of the Percentage
Interest of such Certificate and the Class
Certificate Balance of the Class of
Certificates of which such Certificate is a
part.
Certificate
Custodian:
Initially, Wells
Fargo Bank, N.A.;
thereafter any other Certificate Custodian acceptable to the Depository
and
selected by the Trustee.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a
Book-Entry
Certificate. With
respect
to any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate
Register: The
register maintained pursuant to
Section 6.02.
Certificate
Registrar: The
registrar appointed pursuant to
Section 6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor, the Servicer or any
affiliate thereof shall be deemed not
to be outstanding and the Percentage
Interest and Voting Rights evidenced
thereby shall not be taken into account in
determining whether the requisite
amount of Percentage Interests or Voting
Rights, as the case may be, necessary
to effect any such consent has been
obtained, unless such entity is the
registered owner of the entire Class of
Certificates, provided that the Trustee
shall not be responsible for knowing that
any Certificate is registered in the
name of such an affiliate unless one of its
Responsible Officers has actual
knowledge.
Certification: As defined in Section 3.22(b).
Class: As to the Certificates, the Class 1-CB-1, Class 1-CB-2,
Class
1-CB-3, Class 1-CB-4, Class 1-CB-5, Class
1-CB-6, Class 1-CB-7, Class 1-CB-8,
Class 1-CB-R, Class 2-CB-1, Class 3-CB-1,
Class CB-IO, Class CB-PO, Class 4-A-1,
Class 4-A-2, Class 4-A-3, Class 4-A-4,
Class 4-A-5, Class 4-A-6, Class 4-IO,
Class 4-PO, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 and Class B-6,
as the case may be.
Class 1-CB-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
1-CB-1 Certificates would be reduced as a
result of the allocation of any reduction
pursuant to Section 5.03(b) to such
Class, without regard to the operation of
Section 5.03(e).
Class 1-CB-1 Reserve Fund: The trust account created and
maintained
by the Trustee pursuant to Section 3.08(g)
which shall be entitled the "Class
1-CB-1 Reserve Fund, Wells Fargo Bank,
N.A., as Trustee, in trust for registered
Holders of the Class 1-CB-1 Certificates of
the Banc of America Alternative Loan
Trust; Mortgage Pass-Through Certificates,
Series 2005-11" and which must be an
Eligible Account. Amounts on deposit in the
Class 1-CB-1 Reserve Fund shall not
be invested. The Class 1-CB-1 Reserve Fund
shall not be an asset of any REMIC
formed under this Agreement.
Class 1-CB-1 Yield Maintenance Agreement: The yield maintenance
agreement between the Trustee, on behalf of
the Trust, and the Counterparty,
which will be primarily for the benefit of
the Class 1-CB-1 Certificates,
substantially in the form attached hereto
as Exhibit Q. The Class 1-CB-1 Yield
Maintenance Agreement shall not be an asset
of any REMIC formed under this
Agreement.
Class 1-CB-1 Yield Maintenance Agreement Payment: For any
Distribution Date (other than the
Distribution Date in December 2005) prior to
and including the Distribution Date in May
2024, the amount, if any, required to
be paid by the Counterparty to the Trustee
under the Class 1-CB-1 Yield
Maintenance Agreement.
Class 1-CB-1 Yield Maintenance Amount: For any Distribution
Date
(other than the Distribution Date in
December 2005) prior to and including the
Distribution Date in May 2024, an amount
equal to the product of (a) the Class
Certificate Balance of the Class 1-CB-1
Certificates immediately prior to such
Distribution Date, (b) the excess of (i)
the lesser of 9.01% and LIBOR over (ii)
5.01% and (c) one-twelfth.
Class 1-CB-1 Yield Maintenance Amount Shortfall: For any
Distribution Date, the amount, if any, by
which the Class 1-CB-1 Yield
Maintenance Amount for such Distribution
Date exceeds the sum of the Class
1-CB-1 Yield Maintenance Agreement Payment
for such Distribution Date and any
Excess Funds in the Class 1-CB-1 Reserve
Fund.
Class 1-CB-2 Notional Amount: As to any Distribution Date and
the
Class 1-CB-2 Certificates, the Class
Certificate Balance of the Class 1-CB-1
Certificates.
Class 1-CB-3 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
1-CB-3 Certificates would be reduced as a
result of the allocation of any reduction
pursuant to Section 5.03(b) to such
Class, without regard to the operation of
Section 5.03(e).
Class 1-CB-6 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 1-CB-6 Certificates with respect
to such Distribution Date prior to any
reduction for the Class 1-CB-6 Loss
Allocation Amount and (b) the Class 1-CB-1
Loss Amount with respect to such
Distribution Date.
Class 1-CB-7 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 1-CB-7 Certificates with respect
to such Distribution Date prior to any
reduction for the Class 1-CB-7 Loss
Allocation Amount and (b) the Class 1-CB-3
Loss Amount with respect to such
Distribution Date.
Class 1-CB-8 Accrual Distribution Amount: For any Distribution
Date
and the Class 1-CB-8 Certificates prior to
the Accretion Termination Date, an
amount with respect to such Class equal to
the sum of (i) the amount allocated
but not currently distributable as interest
to such Class pursuant to Section
5.02(a)(i) that is attributable to clause
(i) of the definition of "Interest
Distribution Amount," and (ii) the amount
allocated but not currently
distributable as interest to such Class
pursuant to Section 5.02(a)(i) that is
attributable to clause (ii) of the
definition of "Interest Distribution Amount."
Class 1-CB-IO Notional Amount: As to any Distribution Date and
the
Class 1-CB-IO Component, the product of (i)
the aggregate Stated Principal
Balance of the Group 1 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 1 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 1 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 5.500% and (b) the
denominator of which is equal to
5.500%.
Class 2-CB-IO Notional Amount: As to any Distribution Date and
the
Class 2-CB-IO Component, the product of (i)
the aggregate Stated Principal
Balance of the Group 2 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 2 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 2 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 6.000% and (b) the
denominator of which is equal to
5.500%.
Class 3-CB-IO Notional Amount: As to any Distribution Date and
the
Class 3-CB-IO Component, the product of (i)
the aggregate Stated Principal
Balance of the Group 3 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 3 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 3 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 6.000% and (b) the
denominator of which is equal to
5.500%.
Class 4-A-1 Reserve Fund: The trust account created and
maintained
by the Trustee pursuant to Section 3.08(g)
which shall be entitled the "Class
4-A-1 Reserve Fund, Wells Fargo Bank, N.A.,
as Trustee, in trust for registered
Holders of the Class 4-A-1 Certificates of
the Banc of America Alternative Loan
Trust; Mortgage Pass-Through Certificates,
Series 2005-11" and which must be an
Eligible Account. Amounts on deposit in the
Class 4-A-1 Reserve Fund shall not
be invested. The Class 4-A-1 Reserve Fund
shall not be an asset of any REMIC
formed under this Agreement.
Class 4-A-1 Yield Maintenance Agreement: The yield maintenance
agreement between the Trustee, on behalf of
the Trust, and the Counterparty,
which will be primarily for the benefit of
the Class 4-A-1 Certificates,
substantially in the form attached hereto
as Exhibit Q. The Class 4-A-1 Yield
Maintenance Agreement shall not be an asset
of any REMIC formed under this
Agreement.
Class 4-A-1 Yield Maintenance Agreement Payment: For any
Distribution Date (other than the
Distribution Date in December 2005) prior to
and including the Distribution Date in
March 2021, the amount, if any, required
to be paid by the Counterparty to the
Trustee under the Class 4-A-1 Yield
Maintenance Agreement.
Class 4-A-1 Yield Maintenance Amount: For any Distribution Date
(other than the Distribution Date in
December 2005) prior to and including the
Distribution Date in March 2021, an amount
equal to the product of (a) the Class
Certificate Balance of the Class 4-A-1
Certificates immediately prior to such
Distribution Date, (b) the excess of (i)
the lesser of 8.85% and LIBOR over (ii)
5.10% and (c) one-twelfth.
Class 4-A-1 Yield Maintenance Amount Shortfall: For any
Distribution
Date, the amount, if any, by which the
Class 4-A-1 Yield Maintenance Amount for
such Distribution Date exceeds the sum of
the Class 4-A-1 Yield Maintenance
Agreement Payment for such Distribution
Date and any Excess Funds in the Class
4-A-1 Reserve Fund.
Class 4-A-2 Notional Amount: As to any Distribution Date and
the
Class 4-A-2 Certificates, the Class
Certificate Balance of the Class 4-A-1
Certificates.
Class 4-A-3 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 4-A-3
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 4-A-4 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 4-A-4
Certificates with respect to such
Distribution Date prior to any reduction
for the Class 4-A-4 Loss Allocation
Amount and (b) the Class 4-A-3 Loss Amount
with respect to such Distribution
Date.
Class 4-IO Notional Amount: As to any Distribution Date and the
Class 4-IO Certificates, the product of (i)
the aggregate Stated Principal
Balance of the Group 4 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 4 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 4 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 5.750% and (b) the
denominator of which is equal to
5.500%.
Class B Certificates: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6
Certificates.
Class CB-IO Component: As defined in the Preliminary Statement.
Class CB-IO Notional Amount: As to any Distribution Date, the sum
of
the Class 1-CB-IO Notional Amount, the
Class 2-CB-IO Notional Amount and the
Class 3-CB-IO Notional Amount.
Class CB-PO Component: As defined in the Preliminary Statement.
Class Certificate Balance: With respect to any Class (other than
the
Class 1-CB-2, Class CB-IO, Class 4-A-2,
Class 4-IO and Class CB-PO Certificates)
and any date of determination, and subject
to Section 5.03(f), the Initial Class
Certificate Balance of such Class (plus, in
the case of the Class 1-CB-8
Certificates, any Class 1-CB-8 Accrual
Distribution Amounts previously added
thereto) minus the sum of (i) all
distributions of principal made with respect
thereto (including in the case of any Class
of Subordinate Certificates any
principal otherwise payable to such Class
of Subordinate Certificates used to
pay any PO Deferred Amounts) and (ii) all
reductions in Class Certificate
Balance previously allocated thereto
pursuant to Section 5.03(b), and (iii) in
the case of the Class 1-CB-6, Class 1-CB-7
and Class 4-A-4 Certificates, any
reduction allocated thereto pursuant to
Section 5.03(e), and plus the sum of (i)
all increases in Class Certificate Balance
previously allocated thereto pursuant
to Section 5.03(b) and (ii) in the case of
the Class 1-CB-6, Class 1-CB-7 and
Class 4-A-4 Certificates, any increases
allocated thereto pursuant to Section
5.03(e). The Class 1-CB-2, Class CB-IO,
Class 4-A-2 and Class 4-IO Certificates
are Interest-Only Certificates and have no
Class Certificate Balance. The Class
Certificate Balance of the Class CB-PO
Certificates as of any date of
determination shall equal the sum of the
Component Balances of the Class CB-PO
Components.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the
Class CB-IO Certificates), the amount by
which Accrued Certificate Interest for such
Class (as reduced pursuant to
Section 5.02(c)) exceeds the amount of
interest actually distributed on such
Class (or, in the case of the Class 1-CB-8
Certificates prior to the Accretion
Termination Date, the amount included in
the Class 1-CB-8 Accrual Distribution
Amount, pursuant to clause (i) of the
definition thereof, but not distributed
pursuant to the proviso in Section
5.02(a)(i)) on such Distribution Date
pursuant to clause (i) of the definition of
"Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class (other than the
Class CB-IO Certificates), the
amount by which the aggregate Class
Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount of
interest actually distributed on such
Class (or, in the case of the Class 1-CB-8
Certificates prior to the Accretion
Termination Date, the amount included in
the Class 1-CB-8 Accrual Distribution
Amount, pursuant to clause (ii) of the
definition thereof, but not distributed
pursuant to the proviso in Section
5.02(a)(i)) on such prior Distribution Dates
pursuant to clause (ii) of the definition
of "Interest Distribution Amount." As
to any Distribution Date and the Class
CB-IO Certificates, the sum of the
Component Unpaid Interest Shortfalls for
the Class CB-IO Components.
Closing Date: November 29, 2005.
Code: The
Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date,
the
least of (a) the aggregate Servicing Fee
for such Distribution Date (before
giving effect to any reduction pursuant to
Section 3.17), (b) the Prepayment
Interest Shortfall for such Distribution
Date and (c) one-twelfth of 0.25% of
the aggregate Stated Principal Balance of
the Mortgage Loans.
Component: As defined in the Preliminary Statement.
Component Balance: With respect to any PO Component and any date
of
determination, the Initial Component
Balance of such Component minus the sum of
(i) all distributions of principal made
with respect thereto and (ii) all
reductions in Component Balance previously
allocated thereto pursuant to Section
5.03(b). The IO Components are
interest-only Components and have no Component
Balance.
Component Interest Distribution Amount: For any Distribution
Date
and each IO Component, the sum of (i) the
Accrued Component Interest and (ii)
any Component Unpaid Interest Shortfall for
such Component. The PO Components
are principal only Components and are not
entitled to distributions of interest.
Component Interest Shortfall: For any Distribution Date and each
IO
Component, the amount by which Accrued
Component Interest for such Component
exceeds the amount of interest actually
distributed on such Component on such
Distribution Date pursuant to clause (i) of
the definition of "Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, any of
the
Class 1-CB-IO Notional Amount, Class
2-CB-IO Notional Amount and Class 3-CB-IO
Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date
and
each IO Component, the amount by which the
aggregate Component Interest
Shortfalls for such Component on prior
Distribution Dates exceeds the amount of
interest actually distributed on such
Component on such prior Distribution Dates
pursuant to clause (ii) of the definition
of "Component Interest Distribution
Amount."
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of
the
Trustee at which at any particular time its
corporate trust business with
respect to this Agreement is conducted,
which office at the date of the
execution of this instrument is located at
9062 Old Annapolis Road, Columbia,
Maryland 21045-1951, Attention. Corporate
Trust Services - BOALT 2005-11, and
for certificate transfer purposes is
located at Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479,
Attention. Corporate Trust Services -
BOALT 2005-11, or at such other address as
the Trustee may designate from time
to time by notice to the
Certificateholders, the Depositor and the Servicer.
Corresponding Upper-Tier Class, Classes or Component: As to the
following Uncertificated Middle-Tier
Interests, the Corresponding Upper-Tier
Class, Classes or Component, as
follows:
Uncertificated
Corresponding Upper-Tier
Middle-Tier Interest
Class, Classes or Component
-----------------------------
-----------------------------------------------
Class 1-CB-M1 Interest
Class 1-CB-1 and Class 1-CB-2 Certificates
Class 1-CB-M3 Inerest
Class 1-CB-3, Class 1-CB-4, Class 1-CB-5, Class
1-CB-6, Class 1-CB-7 and Class 1-CB-8
Certificates
Class 1-CB-MUR Interest
Class 1-CB-R Certificate
Class 1-CB-MIO Interest
Class 1-CB-IO Component
Class 1-CB-MPO Interest
Class 1-CB-PO Component
Class 2-CB-M1 Interest
Class 2-CB-1 Certificates
Class 2-CB-MIO Interest
Class 2-CB-IO Component
Class 2-CB-MPO Interest
Class 2-CB-PO Component
Class 3-CB-M1 Interest
Class 3-CB-1 Certificates
Class 3-CB-MIO Interest
Class 3-CB-IO Component
Class 3-CB-MPO Interest
Class 3-CB-PO Component
Class 4-A-M1 Interest
Class 4-A-1 and Class 4-A-2 Certificates
Class 4-A-M3 Interest
Class 4-A-3, Class
4-A-4, Class 4-A-5
and
Class 4-A-6 Certificates
Class 4-MIO Interest
Class 4-IO Certificates
Class 4-MPO Interest
Class 4-PO Certificates
Class B-M1 Interest
Class B-1 Certificates
Class B-M2 Interest
Class B-2 Certificates
Class B-M3 Interest
Class B-3 Certificates
Class B-M4 Interest
Class B-4 Certificates
Class B-M5 Interest
Class B-5 Certificates
Class B-M6 Interest
Class B-6 Certificates
Counterparty: Bank of America, N.A.
Custodian: Initially, the Trustee, and thereafter the Custodian,
if
any, hereafter appointed by the Trustee
pursuant to Section 9.12. The Custodian
may (but need not) be the Trustee or any
Person directly or indirectly
controlling or controlled by or under
common control of either of them. Neither
the Servicer nor the Depositor, nor any
Person directly or indirectly
controlling or controlled by or under
common control with any such Person may be
appointed Custodian.
Customary Servicing Procedures: With respect to the Servicer,
procedures (including collection
procedures) that the Servicer customarily
employs and exercises in servicing and
administering mortgage loans for its own
account and which are in accordance with
accepted mortgage servicing practices
of prudent lending institutions servicing
mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties
are located.
Cut-off Date: November 1, 2005.
Cut-off Date Pool Principal Balance: For each Loan Group the
aggregate of the Cut-off Date Principal
Balances of the Mortgage Loans in such
Loan Group which is $188,575,751.16 for
Loan Group 1, $90,351,364.12 for Loan
Group 2, $54,188,333.45 for Loan Group 3
and $108,972,064.03 for Loan Group 4.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close
of business on the Cut-off Date,
reduced by all installments of principal
due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the
Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan
over (ii) the amount of the monthly
payment of principal and/or interest
required to be paid with respect to such
Due Date by the Mortgagor as established by
a court of competent jurisdiction
(pursuant to an order which has become
final and nonappealable) as a result of a
proceeding initiated by or against the
related Mortgagor under the Bankruptcy
Code, as amended from time to time (11
U.S.C.); provided that no such excess
shall be considered a Debt Service
Reduction so long as (a) the Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payment due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the Servicer in
accordance with the terms of such Mortgage
Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service
Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for
pursuant to Section 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then
outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation
thereof established by a court of competent
jurisdiction (pursuant to an order which
has become final and nonappealable) as
a result of a proceeding initiated by or
against the related Mortgagor under the
Bankruptcy Code, as amended from time to
time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged
Property; provided that no such excess
shall be considered a Deficient Valuation
so long as (a) the Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payments due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the Servicer in
accordance with the terms of such Mortgage
Loan as in effect on the Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section
6.02(c)(iii).
Depositor: Banc of
America Mortgage Securities, Inc., a Delaware
corporation, or its successor in interest,
as depositor of the Trust Estate.
Depository: The
Depository Trust
Company, the nominee of which
is Cede & Co., as the registered Holder
of the Book-Entry
Certificates or any
successor thereto appointed in accordance with this Agreement. The
Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 16th day of
the
month of the related Distribution Date or,
if such 16th day is not a Business
Day, the Business Day immediately preceding
such 16th day.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan, Group
2
Discount Mortgage Loan, Group 3 Discount
Mortgage Loan or Group 4 Discount
Mortgage Loan.
Distribution Date: The 25th day of each month beginning in
December
2005 (or, if such day is not a Business
Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such
Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
(a) Bank of America, or (b) a federal or
state chartered depository institution
or trust company the short-term unsecured
debt obligations of which (or, in the
case of a depository institution or trust
company that is the principal
subsidiary of a holding company, the debt
obligations of such holding company)
have the highest short-term ratings of each
Rating Agency at the time any
amounts are held on deposit therein, or
(ii) an account or accounts in a
depository institution or trust company in
which such accounts are insured by
the FDIC (to the limits established by the
FDIC) and the uninsured deposits in
which accounts are otherwise secured such
that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to
each Rating Agency, the
Certificateholders have a claim with
respect to the funds in such account or a
perfected first priority security interest
against any collateral (which shall
be limited to Permitted Investments)
securing such funds that is superior to
claims of any other depositors or creditors
of the depository institution or
trust company in which such account is
maintained, or (iii) a trust account or
accounts maintained with the trust
department of a federal or state chartered
depository institution or trust company,
acting in its fiduciary capacity or
(iv) any other account acceptable to each
Rating Agency. Eligible Accounts may
bear interest and may include, if otherwise
qualified under this definition,
accounts maintained with the Trustee or
Bank of America.
ERISA: The Employee
Retirement
Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class 1-CB-6, Class 1-CB-7,
Class
B-1, Class B-2, Class B-3, Class B-4, Class
B-5 or Class B-6 Certificate.
Escrow Account: As
defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and
hazard insurance premiums and other
payments as may be required to be escrowed
by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note
or Mortgage.
Events of Default: As
defined in Section 8.01.
Excess Funds: With respect to (A) the Class 1-CB-1 Reserve Fund
and
for any Distribution Date, the amount by
which (a) the Class 1-CB-1 Yield
Maintenance Agreement Payments for prior
Distribution Dates exceed (b) the
amount actually paid from the Class 1-CB-1
Reserve Fund with respect to (i)
Class 1-CB-1 Yield Maintenance Amounts for
such prior Distribution Dates and
(ii) Class 1-CB-1 Yield Maintenance Amount
Shortfalls for such prior
Distribution Dates and (B) the Class 4-A-1
Reserve Fund and for any Distribution
Date, the amount by which (a) the Class
4-A-1 Yield Maintenance Agreement
Payments for prior Distribution Dates
exceed (b) the amount actually paid from
the Class 4-A-1 Reserve Fund with respect
to (i) Class 4-A-1 Yield Maintenance
Amounts for such prior Distribution Dates
and (ii) Class 4-A-1 Yield Maintenance
Amount Shortfalls for such prior
Distribution Dates.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with
respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds
(i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
Date in the month in which such
Mortgage Loan became a Liquidated Mortgage
Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due
Date as to which interest was last paid
or for which a Periodic Advance was made
(and not reimbursed) up to the Due Date
applicable to the Distribution Date
immediately following the calendar month
during which such liquidation occurred.
Exchange Act: The
Securities Exchange Act of 1934, as amended.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FHLMC: The
Federal Home Loan Mortgage Corporation, or any
successor thereto.
Final Distribution
Date: The Distribution Date on which the
final distribution in respect of the Certificates will be made pursuant to
Section 10.01.
Financial Market
Service: Bloomberg Financial Service and any
other financial information provider designated by the Depositor by
written
notice to the Trustee.
FIRREA: The
Financial
Institutions
Reform,
Recovery
and
Enforcement Act of 1989, as amended.
Fitch: Fitch Ratings,
or any successor thereto.
FNMA: Fannie Mae, or
any successor thereto.
Form 10-K: As defined
in Section 3.22(a).
Fractional Interest:
As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the
REMICs
consisting of (i) the right of the Class
1-CB-1 Certificates to receive amounts
from the Class 1-CB-1 Reserve Fund, (ii)
the right of the Class 4-A-1
Certificates to receive amounts from the
Class 4-A-1 Reserve Fund, (iii) the
Class 1-CB-1 Yield Maintenance Agreement
and the Class 1-CB-1 Reserve Fund and
(iv) the Class 4-A-1 Yield Maintenance
Agreement and the Class 4-A-1 Reserve
Fund.
Group: Any of Group 1,
Group 2, Group 3 or Group 4.
Group 1: The
Group 1 Senior Certificates, the Class 1-CB-IO
Component and the Class 1-CB-PO
Component.
Group 1 Discount Mortgage Loan. A Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 5.500% per
annum.
Group 1 Mortgage
Loan: Each Mortgage Loan listed on
Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: A Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
5.500% per annum.
Group 1 Priority Amount: As to any Distribution Date, the lesser
of
(i) the sum of the Class Certificate
Balances of the Class 1-CB-3 and Class
1-CB-7 Certificates and (ii) the product of
(a) the Non-PO Principal Amount for
Loan Group 1, (b) the Shift Percentage and
(c) the Group 1 Priority Percentage.
Group 1 Priority Percentage: As to any Distribution Date, (i)
the
sum of the Class Certificate Balances of
the Class 1-CB-3 and Class 1-CB-7
Certificates divided by (ii) the Pool
Stated Principal Balance (Non-PO Portion)
for Loan Group 1.
Group 1 Senior Certificates: Class 1-CB-1, Class 1-CB-2, Class
1-CB-3, Class 1-CB-4, Class 1-CB-5, Class
1-CB-6, Class 1-CB-7, Class 1-CB-8 and
Class 1-CB-R Certificates.
Group 2: The
Group 2 Senior Certificates, the Class 2-CB-IO
Component and the Class 2-CB-PO
Component.
Group 2 Discount Mortgage Loan. A Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 6.000% per
annum.
Group 2 Mortgage
Loan: Each Mortgage Loan listed on
Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: A Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
6.000% per annum.
Group 2 Senior Certificates: Class 2-CB-1 Certificates.
Group 3: The
Group 3 Senior Certificates, the Class 3-CB-IO
Component and the Class 3-CB-PO
Component.
Group 3 Discount Mortgage Loan: A Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 6.000% per
annum.
Group 3 Mortgage
Loan: Each Mortgage Loan listed on
Exhibit D-3
hereto.
Group 3 Premium Mortgage Loan: A Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
6.000% per annum.
Group 3 Senior Certificates: Class 3-CB-1 Certificates.
Group 4: The Group 4
Senior Certificates.
Group 4 Discount Mortgage Loan: A Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 5.750% per
annum.
Group 4 Mortgage
Loan: Each Mortgage Loan listed on
Exhibit D-4
hereto.
Group 4 Premium Mortgage Loan: A Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
5.750% per annum.
Group 4 Priority Amount: As to any Distribution Date, the lesser
of
(i) the sum of the Class Certificate
Balances of the Class 4-A-3 and Class 4-A-4
Certificates and (ii) the product of (a)
the Non-PO Principal Amount for Loan
Group 4, (b) the Shift Percentage and (c)
the Group 4 Priority Percentage.
Group 4 Priority Percentage: As to any Distribution Date, (i)
the
sum of the Class Certificate Balances of
the Class 4-A-3 and Class 4-A-4
Certificates divided by (ii) the Pool
Stated Principal Balance (Non-PO Portion)
for Loan Group 4.
Group 4 Senior Certificates: Class 4-A-1, Class 4-A-2, Class
4-A-3,
Class 4-A-4, Class 4-A-5, Class 4-A-6,
Class 4-IO and Class 4-PO Certificates.
Group Subordinate Amount: With respect to any Distribution Date
and
any Loan Group, the excess of the Pool
Stated Principal Balance (Non-PO Portion)
for such Loan Group over the aggregate
Class Certificate Balance of the Senior
Certificates (but not the Class 4-PO
Certificates) of the Related Group
immediately prior to such date.
Holder: A
Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact
independent of the Depositor and the Servicer,
(ii) does not have any direct financial
interest or any material indirect
financial interest in the Depositor or the
Servicer or in an affiliate of either
of them, and (iii) is not connected with
the Depositor or the Servicer as an
officer, employee, promoter, underwriter,
trustee, partner, director or person
performing similar functions.
Initial Class Certificate Balance: As to each Class of
Certificates
(other than the Class 1-CB-2, Class CB-IO,
Class 4-A-2, Class 4-IO and Class
CB-PO Certificates), the Class Certificate
Balance set forth in the Preliminary
Statement. The Class 1-CB-2, Class CB-IO,
Class 4-A-2 and Class 4-IO
Certificates are Interest-Only Certificates
and have no Initial Class
Certificate Balance. The Initial Class
Certificate Balance of the Class CB-PO
Certificates is the sum of the Initial
Component Balances for the Class 1-CB-PO,
Class 2-CB-PO and Class 3-PO
Components.
Initial Component Balance: As to each PO Component, the
Component
Balance set forth in the Preliminary
Statement. The IO Components are
interest-only Components and have no
Initial Component Balance.
Initial Component Notional Amount: As to each IO Component, the
Component Notional Amount set forth in the
Preliminary Statement.
Initial Notional Amount: For the Class CB-IO Certificates, the
sum
of the Initial Component Notional Amounts
for the Class 1-CB-IO, Class 2-CB-IO
and Class 3-CB-IO Components. For the Class
1-CB-2 Certificates, the Notional
Amount set forth in the Preliminary
Statement. For the Class 4-A-2 Certificates,
the Notional Amount set forth in the
Preliminary Statement. For the Class 4-IO
Certificates, the Notional Amount set forth
in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any related insurance policy,
including all riders and
endorsements thereto in effect, including
any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the
Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Certificates (other than the Class
1-CB-1, Class 1-CB-2, Class CB-IO, Class
CB-PO, Class 4-A-1, Class 4-A-2 and Class
4-PO Certificates) and each IO
Component, the period from and including
the first day of the calendar month
preceding the calendar month of such
Distribution Date to but not including the
first day of the calendar month of such
Distribution Date. As to any
Distribution Date and the Class 1-CB-1,
Class 1-CB-2, Class 4-A-1 and Class
4-A-2 Certificates, the period from and
including the 25th day of the calendar
month preceding the calendar month in which
such Distribution Date occurs and
ending on the 24th day of the calendar
month in which such Distribution Date
occurs.
Interest Distribution Amount: For any Distribution Date and
each
interest-bearing Class (other than the
Class CB-IO Certificates), the sum of (i)
the Accrued Certificate Interest, subject
to reduction pursuant to Section
5.02(c) and (ii) any Class Unpaid Interest
Shortfall for such Class. For any
Distribution Date and the Class CB-IO
Certificates, the sum of the Component
Interest Distribution Amounts for the Class
CB-IO Components.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no
distributions of principal. The Class 1-CB-2,
Class CB-IO, Class 4-A-2, and Class 4-IO
Certificates are the only Classes of
Interest-Only Certificates.
Interest Settlement Rate: As defined in Section 5.09.
IO Component: As defined in the Preliminary Statement.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations
for one-month U.S. Dollar deposits, as
determined by the Trustee in accordance
with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open
for
dealing in foreign currency and exchange in
London, England or the City of New
York.
LIBOR Certificates: Any of the Class 1-CB-1, Class 1-CB-2,
Class
4-A-1 or Class 4-A-2 Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO
Property) that was liquidated in the
calendar month preceding the month of such
Distribution Date and as to which the
Servicer has certified (in accordance with
this Agreement) that it has received
all proceeds it expects to receive in
connection with the liquidation of such
Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or
complete liquidation of defaulted
Mortgage Loans, whether through trustee's
sale, foreclosure sale or otherwise or
amounts received in connection with any
condemnation or partial release of a
Mortgaged Property and any other proceeds
received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3 or
Loan
Group 4.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed
as a percentage, the numerator of
which is the outstanding principal balance
of the related Mortgage Loan at the
date of determination and the denominator
of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage
Loans, such amounts as shall from time
to time be held in the Certificate Account
(other than amounts held in respect
of the Middle-Tier Certificate Sub-Account
or the Upper-Tier Certificate
Sub-Account), the insurance policies, if
any, relating to a Mortgage Loan and
property which secured a Mortgage Loan and
which has been acquired by
foreclosure or deed in lieu of
foreclosure.
MERS: As defined in Section 2.01(b)(iii).
Middle-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the
Trustee pursuant to Section 3.08(f).
Middle-Tier Distribution Amount: As defined in Section 5.02(a).
Middle-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be
deemed held in the Middle-Tier Certificate
Sub-Account.
Monthly Covered Amount: As defined in the Mortgage Loan
Purchase
Agreement.
Monthly Form 8-K: As defined in Section 3.22(a).
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified herein,
shall give effect to any related Debt
Service Reduction and any Deficient
Valuation that affects the amount of the
monthly payment due on such Mortgage Loan
or the Monthly Covered Amount
representing such scheduled monthly
payment.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing
a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage
Loan.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on
the principal balance of such Mortgage
Loan in accordance with the terms of the
related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated November 29, 2005, between
Bank of America, as seller, and the
Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the Servicer to reflect the
addition of Substitute Mortgage
Loans and the deletion of Defective
Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee
as part of the Trust Estate and from
time to time subject to this Agreement,
attached hereto as Exhibit D-1, Exhibit
D-2, Exhibit D-3 and Exhibit D-4, setting
forth the following information with
respect to each Mortgage Loan: (i) the
Mortgage Loan identifying number; (ii) a
code indicating whether the Mortgaged
Property is owner-occupied; (iii) the
property type for each Mortgaged Property;
(iv) the original months to maturity
or the remaining months to maturity from
the Cut-off Date; (v) the Loan-to-Value
Ratio at origination; (vi) the Mortgage
Interest Rate as of the Cut-off Date;
(vii) the date on which the first Monthly
Payment was due on the Mortgage Loan,
and, if such date is not the Due Date
currently in effect, such Due Date; (viii)
the stated maturity date; (ix) the amount
of the Monthly Payment as of the
Cut-off Date; (x) the paid-through date;
(xi) the original principal amount of
the Mortgage Loan; (xii) the principal
balance of the Mortgage Loan as of the
close of business on the Cut-off Date,
after application of payments of
principal due on or before the Cut-off
Date, whether or not collected, and after
deduction of any payments collected of
scheduled principal due after the Cut-off
Date; (xiii) a code indicating the purpose
of the Mortgage Loan; (xiv) a code
indicating the documentation style; (xv)
the Appraised Value; and (xvi) the
closing date of such Mortgage Loan. With
respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall
set forth the following information,
as of the Cut-off Date: (i) the number of
Mortgage Loans; (ii) the current
aggregate outstanding principal balance of
the Mortgage Loans; (iii) the
weighted average Mortgage Interest Rate of
the Mortgage Loans; and (iv) the
weighted average months to maturity of the
Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as
from time to time are held as a part
of the Trust Estate (including any
Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being
identified in the Mortgage Loan
Schedule.
Mortgage Note:
The originally executed note or other evidence of
indebtedness evidencing the indebtedness of
a Mortgagor under a Mortgage Loan,
together with all riders thereto and
amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or
residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage
Interest Rate thereon on the first day of
the month preceding the month of the
related Distribution Date reduced by (i)
the Servicing Fee Rate and (ii) the Trustee
Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator
of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such
Discount Mortgage Loan and the denominator
of which is 5.500% for each Group 1
Discount Mortgage Loan, 6.000% for each
Group 2 Discount Mortgage Loan and Group 3
Discount Mortgage Loan and 5.750% for
each Group 4 Discount Mortgage Loan. As to
any Mortgage Loan that is not a
Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date and Loan
Group,
the sum of (i) the sum of the applicable
Non-PO Percentage of (a) the principal
portion of each Monthly Payment due on each
Mortgage Loan in such Loan Group on
the related Due Date, (b) the Stated
Principal Balance, as of the date of
repurchase, of each Mortgage Loan in such
Loan Group that was repurchased by the
Depositor pursuant to this Agreement during
the calendar month preceding the
month of such Distribution Date, (c) any
Substitution Adjustment Amount in
connection with a Defective Mortgage Loan
in such Loan Group received during the
calendar month preceding the month of such
Distribution Date, (d) any
Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated
Mortgage Loans received during the
calendar month preceding the month of such
Distribution Date, (e) with respect
to each Mortgage Loan in such Loan Group
that became a Liquidated Mortgage Loan
during the calendar month preceding the
month of such Distribution Date, the
amount of Liquidation Proceeds (excluding
Excess Proceeds) allocable to
principal received with respect to such
Mortgage Loan during the calendar month
preceding the month of such Distribution
Date and (f) all Principal Prepayments
on the Mortgage Loans in such Loan Group
received during the calendar month
preceding the month of such Distribution
Date; and (ii) the Non-PO Recovery for
such Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group,
the
amount of all Recoveries received with
respect to such Loan Group during the
calendar month preceding the month of such
Distribution Date less the PO
Recovery with respect to such Loan Group
for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date,
the
amount, if any, by which the aggregate of
Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution
Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a
Mortgage Loan which has not been previously
reimbursed and which, in the good faith
judgment of the Servicer, will not or,
in the case of a proposed Advance, would
not be ultimately recoverable from the
related Mortgagor, related Liquidation
Proceeds, or other recoveries in respect
of the related Mortgage Loan.
Notional Amount: With respect to: (i) the Class 1-CB-2
Certificates
and any date of determination, the Class
1-CB-2 Notional Amount, (ii) the Class
1-CB-IO Component and any date of
determination, the Class 1-CB-IO Notional
Amount, (iii) the Class 2-CB-IO Component
and any date of determination, the
Class 2-CB-IO Notional Amount, (iv) the
Class 3-CB-IO Component and any date of
determination, the Class 3-CB-IO Notional
Amount, (v) the Class CB-IO
Certificates and any date of determination,
the Class CB-IO Notional Amount,
(vi) the Class 4-A-2 Certificates and any
date of determination, the Class 4-A-2
Notional Amount and (vii) the Class 4-IO
Certificates and any date of
determination, the Class 4-IO Notional
Amount.
OCC: The Office of the Comptroller of the Currency.
Offered Certificates: The Senior Certificates, 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
Servicer, as the case may be, and delivered
to the Trustee.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee, who may be counsel for the
Depositor or the Servicer, except that any
opinion of counsel relating to the
qualification of the Trust Estate as three
separate REMICs or compliance with the
REMIC Provisions must be an opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the
corresponding percentage described
below, as of the Closing Date:
Class B-1
2.36%
Class B-2
1.51%
Class B-3
0.91%
Class B-4
0.60%
Class B-5
0.30%
Class B-6
0.00%
Original Subordinate Certificate Balance: $17,907,290.00.
OTS:
The Office of Thrift
Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal
Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage
Loan prior to such Due Date and which
was not purchased from the Trust prior to
such Due Date pursuant to Section 2.02
or 2.04.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any
interest in such Certificate as the
Holder thereof and any other interest
therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates
(other than the Class CB-IO Certificates)
and each IO Component, the per annum
rate set forth or described in the
Preliminary Statement.
Paying Agent: As
defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance
of such Certificate (or the initial
notional amount for a Class 1-CB-2, Class
CB-IO, Class 4-A-2 or Class 4-IO
Certificate) by the Initial Class
Certificate Balance or Initial Notional
Amount, as applicable, of the Class of
which such Certificate is a part.
Periodic Advance: The payment required to be made by the
Servicer
with respect to any Distribution Date
pursuant to Section 3.20, the amount of
any such payment being equal to the
aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans
(including any REO Property) that were due
on the related Due Date and not received as
of the close of business on the
related Determination Date, less the
aggregate amount of any such delinquent
payments that the Servicer has determined
would constitute a Nonrecoverable
Advance if advanced.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest
by
the United States, FHLMC, FNMA or any agency or instrumentality
of
the United States when such obligations are backed by the full
faith
and credit of the United States; provided that such obligations
of
FHLMC or FNMA shall be limited to senior debt obligations and
mortgage participation certificates other than investments in
mortgage-backed or mortgage participation securities with
yields
evidencing extreme sensitivity to the rate of principal payments
on
the underlying mortgages, which shall not constitute Permitted
Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month from the date of
acquisition
thereof with a corporation incorporated under the laws of the
United
States or any state thereof rated not lower than "P-1" by
Moody's
and "F-1" by Fitch;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have
an
original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity
of
more than 365 days or a remaining maturity of more than 30
days)
denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof, rated not lower than "P-1"
by
Moody's and "F-1" by Fitch;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of
the
United States or any state thereof which is rated not lower
than
"P-1" by Moody's and "F-1" by Fitch;
(v) investments in money market funds (including funds of the
Trustee or its affiliates, or funds for which an affiliate of
the
Trustee acts as advisor, as well as funds for which the Trustee
and
its affiliates may receive compensation) rated "Aaa" by Moody's
and
"AAA" by Fitch (if rated by Fitch) or otherwise approved in
writing
by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating Agency and, as evidenced by an Opinion of Counsel obtained
by
the Servicer, will not affect the qualification of the Trust
Estate
as three separate REMICs;
provided, however, that no instrument shall
be a Permitted Investment if it
represents either (a) the right to receive
only interest payments with respect
to the underlying debt instrument or (b)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision
thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a foreign government,
international organization or any agency or
instrumentality of either of the
foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by
Section 511 of the Code on unrelated
business taxable income) (except certain
farmers' cooperatives described in Code
Section 521), (iv) rural electric and
telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with
respect to whom the income on the
Residual Certificate is allocable to a
foreign permanent establishment or fixed
base, within the meaning of an applicable
income tax treaty, of such Person or
any other Person, and (vi) any other Person
so designated by the Servicer based
on an Opinion of Counsel to the effect that
any transfer to such Person may
cause the Trust or any other Holder of the
Residual Certificate to incur tax
liability that would not be imposed other
than on account of such transfer. The
terms "United States," "State" and
"international organization" shall have the
meanings set forth in Code Section 7701 or
successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-CB-R, Class B-4, Class B-5
and
Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Component: As defined in the Preliminary Statement.
PO Deferred Amount: As to any Distribution Date and each PO
Component, the sum of the amounts by which
the Component Balance of such PO
Component will be reduced on such
Distribution Date or has been reduced on prior
Distribution Dates as a result of Section
5.03(b) less the sum of (a) the PO
Recoveries with respect to the Related Loan
Group for prior Distribution Dates
and (b) the amounts distributed to such PO
Component pursuant to Section
5.02(a)(iii) on prior Distribution Dates.
As to any Distribution Date and the
Class 4-PO Certificates, the sum of the
amounts by which the Class Certificate
Balance of such Class 4-PO Certificates
will be reduced on such Distribution
Date or has been reduced on prior
Distribution Dates as a result of Section
5.03(b) less the sum of (a) the PO
Recoveries with respect to Loan Group 4 for
prior Distribution Dates and (b) the
amounts distributed to such Class 4-PO
Certificates pursuant to Section
5.02(a)(iii) on prior Distribution Dates.
PO
Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan.
As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group,
the
sum of the applicable PO Percentage of (a)
the principal portion of each Monthly
Payment due on each Mortgage Loan in such
Loan Group on the related Due Date,
(b) the Stated Principal Balance, as of the
date of repurchase, of each Mortgage
Loan in such Loan Group that was
repurchased by the Depositor pursuant to this
Agreement during the calendar month
preceding the month of such Distribution
Date, (c) any Substitution Adjustment
Amount in connection with any Defective
Mortgage Loan in such Loan Group received
during the calendar month preceding
the month of such Distribution Date, (d)
any Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans
in such Loan Group that are not yet
Liquidated Mortgage Loans received during
the calendar month preceding the month
of such Distribution Date, (e) with respect
to each Mortgage Loan in such Loan
Group that became a Liquidated Mortgage
Loan during the calendar month preceding
the month of such Distribution Date, the
amount of Liquidation Proceeds
(excluding Excess Proceeds) allocable to
principal received with respect to such
Mortgage Loan during the calendar month
preceding the month of such Distribution
Date with respect to such Mortgage Loan and
(f) all Principal Prepayments
received on the Mortgage Loans in such Loan
Group received during the calendar
month preceding the month of such
Distribution Date.
PO Recovery: As to any Distribution Date and Loan Group, the
lesser
of (a) (i) in the case of Group 1, Group 2
and Group 3, the PO Deferred Amount
for the PO Component of the Related Group
for such Distribution Date and (ii) in
the case of Group 4, the PO Deferred Amount
for the Class 4-PO Certificates for
such Distribution Date and (b) an amount
equal to the sum as to each Mortgage
Loan in such Loan Group as to which there
has been a Recovery received during
the calendar month preceding the month of
such Distribution Date, of the product
of (x) the PO Percentage with respect to
such Mortgage Loan and (y) the amount
of the Recovery with respect to such
Mortgage Loan.
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the
aggregate of (A) the interest
portion of any Monthly Payment on a
Mortgage Loan in such Loan Group (net of the
Servicing Fee) and the principal portion of
any Monthly Payment on a Mortgage
Loan in such Loan Group due on the Due Date
in the month in which such
Distribution Date occurs and which is
received prior to the related
Determination Date (or in the case of any
Monthly Covered Amount, the related
Remittance Date) and (B) all Periodic
Advances and payments of Compensating
Interest made by the Servicer in respect of
such Loan Group and Distribution
Date deposited to the Servicer Custodial
Account pursuant to Section
3.08(b)(vii); (ii) all Liquidation Proceeds
received on the Mortgage Loans in
such Loan Group during the preceding
calendar month and deposited to the
Servicer Custodial Account pursuant to
Section 3.08(b)(iii); (iii) all Principal
Prepayments (other than Total Covered
Amounts) received on the Mortgage Loans in
such Loan Group during the month preceding
the month of such Distribution Date
and deposited to the Servicer Custodial
Account pursuant to Section 3.08(b)(i)
during such period and all Total Covered
Amounts received and deposited in the
Servicer Custodial Account by the related
Remittance Date; (iv) in connection
with Defective Mortgage Loans in such Loan
Group, as applicable, the aggregate
of the Repurchase Prices and Substitution
Adjustment Amounts deposited on the
related Remittance Date pursuant to Section
3.08(b)(vi); (v) any other amounts
in the Servicer Custodial Account deposited
therein pursuant to Sections
3.08(b)(iv), (v) and (ix) in respect of
such Distribution Date and such Loan
Group; (vi) any Reimbursement Amount
required to be included pursuant to Section
5.02(a); and (vii) any Non-PO Recovery with
respect to such Distribution Date
over (b) any (i) amounts permitted to be
withdrawn from the Servicer Custodial
Account pursuant to clauses (i) through
(vii), inclusive, of Section 3.11(a) in
respect of such Loan Group and (ii) amounts
permitted to be withdrawn from the
Certificate Account pursuant to clauses (i)
and (ii) of Section 3.11(b) in
respect of such Loan Group.
Pool
Stated Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal
Balance of all Mortgage Loans in such Loan
Group that were Outstanding Mortgage Loans
immediately following the Due Date in
the month preceding the month in which such
Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group, the sum
for each Mortgage Loan in such Loan
Group of the product of (a) the Non-PO
Percentage of such Mortgage Loan and (b)
the Stated Principal Balance of such
Mortgage Loan that was an Outstanding
Mortgage Loan immediately following the Due
Date in the month preceding the
month in which such Distribution Date
occurs.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan, Group
2
Premium Mortgage Loan, Group 3 Premium
Mortgage Loan or Group 4 Premium Mortgage
Loan.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal
Prepayment received during the calendar
month preceding such Distribution Date, the
amount, if any, by which one month's
interest at the related Mortgage Interest
Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the
amount of interest paid in connection with
such Principal Prepayment.
Primary Insurance Policy: Each policy of primary mortgage
guaranty
insurance or any replacement policy
therefor with respect to any Mortgage Loan,
in each case issued by an insurer
acceptable to FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled
to
distributions of principal, but to no
distributions of interest. The Class CB-PO
and Class 4-PO Certificates are the only
Classes of Principal Only Certificates.
Principal Prepayment: Any payment or other recovery of principal
on
a Mortgage Loan (other than Liquidation
Proceeds) which is received in advance
of its scheduled Due Date and is not
accompanied by an amount of interest
representing scheduled interest due on any
date or dates in any month or months
subsequent to the month of prepayment,
including the principal portion of any
Total Covered Amount.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
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 Class
B
Certificates that is not a Restricted
Class, the portion of the Subordinate
Principal Distribution Amounts allocable to
such Class, equal to the product of
the Subordinate Principal Distribution
Amounts for the Class B Certificates, for
such Distribution Date and a fraction, the
numerator of which is the related
Class Certificate Balance thereof and the
denominator of which is the aggregate
Class Certificate Balance of the Class B
Certificates that are not Restricted
Classes. The Pro Rata Share of a Restricted
Class shall be 0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related
Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged
Property or in any loan made on the
security thereof, whose compensation is not
affected by the approval or
disapproval of the related Mortgage Loan
and who met the minimum qualifications
of FNMA or FHLMC.
Rate Determination Date: As to any Class of LIBOR Certificates
and
each Distribution Date (other than the
initial Distribution Date), the second
LIBOR Business Day prior to the beginning
of the applicable Interest Accrual
Period for such Class and such Distribution
Date.
Rating Agency: Each of Fitch and Moody's. If either such
organization or a successor is no longer in
existence, "Rating Agency" shall be
such nationally recognized statistical
rating organization, or other comparable
Person, as is designated by the Depositor,
notice of which designation shall be
given to the Trustee. References herein to
a given rating or rating category of
a Rating Agency shall mean such rating
category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation,
equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as
of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest
Rate from the Due Date as to which
interest was last paid or advanced (and not
reimbursed) to Certificateholders up
to the Due Date in the month in which
Liquidation Proceeds are required to be
distributed on the Stated Principal Balance
of such Liquidated Mortgage Loan
from time to time, minus (iii) the
Liquidation Proceeds, if any, received during
the month in which such liquidation
occurred, to the extent applied as
recoveries of interest at the Net Mortgage
Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to
each Mortgage Loan that has become the
subject of a Deficient Valuation, if the
principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and
the principal balance of the Mortgage Loan
as reduced by the Deficient
Valuation. With respect to each Mortgage
Loan that has become the subject of a
Debt Service Reduction and any Distribution
Date, the amount, if any, by which
the principal portion of the related
Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not
a
Business Day, the preceding Business Day)
preceding the month of the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such
Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of
which
were not used to purchase the related
Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.04.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group
2;
for Loan Group 3, Group 3; for Loan Group
4, Group 4.
Related Loan Group: For Group 1, Loan Group 1; for Group 2,
Loan
Group 2; for Group 3, Loan Group 3; for
Group 4, Loan Group 4.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act or
comparable state legislation, the amount,
if any, by which (i) interest collectible
on such Mortgage Loan for the most
recently ended calendar month is less than
(ii) interest accrued pursuant to the
terms of the Mortgage Note on the same
principal amount and for the same period
as the interest collectible on such
Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates and the
Components as that term is defined in
Section 2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment
conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1
of the Code, and related provisions,
and regulations promulgated thereunder, as
the foregoing may be in effect from
time to time, as well as provisions of
applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m.
Eastern
time on the Business Day immediately
preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the
Servicer,
received in respect of any REO Property
(including, without limitation, proceeds
from the rental of the related Mortgaged
Property) which are received prior to
the final liquidation of such Mortgaged
Property.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or
deed-in-lieu of foreclosure in
connection with a defaulted Mortgage
Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased
on
any date pursuant to Section 2.02 or 2.04,
an amount equal to the sum of (i) the
unpaid principal balance thereof and (ii)
the unpaid accrued interest thereon at
the applicable Mortgage Interest Rate from
the Due Date to which interest was
last paid by the Mortgagor to the first day
of the month following the month in
which such Mortgage Loan became eligible to
be repurchased.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on
behalf of the Trustee, substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be
maintained from time to time under this
Agreement in respect of such Mortgage
Loan.
Reserve Fund: Either of the Class 1-CB-1 Reserve Fund or the
Class
4-A-1 Reserve Fund.
Residual Certificate: The Class 1-CB-R Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Department
of the Trustee, including any Senior
Vice President, any Vice President, any
Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant
Trust Officer, or any other officer of
the Trustee customarily performing
functions similar to those performed by any
of the above designated officers and having
responsibility for the
administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
Seller: Bank of America, a national banking association, or its
successor in interest, as seller of the
Mortgage Loans under the Mortgage Loan
Purchase Agreement.
Senior Certificates: The Class 1-CB-1, Class 1-CB-2, Class
1-CB-3,
Class 1-CB-4, Class 1-CB-5, Class 1-CB-6,
Class 1-CB-7, Class 1-CB-8, Class
1-CB-R, Class 2-CB-1, Class 3-CB-1, Class
CB-IO, Class CB-PO, Class 4-A-1, Class
4-A-2, Class 4-A-3, Class 4-A-4, Class
4-A-5, Class 4-A-6, Class 4-IO and Class
4-PO Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the
Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and
Loan
Group, the percentage, carried six places
rounded up, obtained by dividing (i)
the aggregate Class Certificate Balance of
the Senior Certificates of the
Related Group immediately prior to such
Distribution Date by (ii) the Pool
Stated Principal Balance (Non-PO Portion)
of such Loan Group immediately prior
to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group during the five years beginning on
the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Loan
Group for any Distribution Date
occurring on or after the fifth anniversary
of the first Distribution Date will,
except as provided herein, be as follows:
for any Distribution Date in the first
year thereafter, the Senior Percentage for
such Loan Group plus 70% of the
Subordinate Percentage for such Loan Group
for such Distribution Date; for any
Distribution Date in the second year
thereafter, the Senior Percentage for such
Loan Group plus 60% of the Subordinate
Percentage for such Loan Group for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage for such Loan Group plus
40% of the Subordinate Percentage for
such Loan Group for such Distribution Date;
for any Distribution Date in the
fourth year thereafter, the Senior
Percentage for such Loan Group plus 20% of
the Subordinate Percentage for such Loan
Group for such Distribution Date; and
for any Distribution Date in the fifth or
later years thereafter, the Senior
Percentage for such Loan Group for such
Distribution Date, unless on any of the
foregoing Distribution Dates the Total
Senior Percentage exceeds the initial
Total Senior Percentage, in which case the
Senior Prepayment Percentage for each
Loan Group for such Distribution Date will
once again equal 100%.
Notwithstanding the foregoing, no decrease
in the Senior Prepayment Percentage
for any Loan Group will occur unless both
of the Senior Step Down Conditions are
satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior
Percentage for such Loan Group of the
applicable Non-PO Percentage of the amounts
described in clauses (i)(a) through
(d) of the definition of "Non-PO Principal
Amount" for such Distribution Date
and Loan Group and (ii) the Senior
Prepayment Percentage for such Loan Group of
(1) the applicable Non-PO Percentage of the
amounts described in clauses (i)(e)
and (f) and (2) the amount described in
clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution
Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment
Percentage for any Loan Group applies, (i)
the outstanding principal balance of all
Mortgage Loans (including, for this
purpose, any Mortgage Loans in foreclosure,
any REO Property and any Mortgage
Loan for which the Mortgagor has filed for
bankruptcy after the Closing Date)
delinquent 60 days or more (averaged over
the preceding six-month period), as a
percentage of the aggregate Class
Certificate Balance of the Subordinate
Certificates, is not equal to or greater
than 50% or (ii) cumulative Realized
Losses with respect to the Mortgage Loans
as of the applicable Distribution Date
do not exceed the percentages of the
Original Subordinate Class Certificate
Balance set forth below:
Distribution Date
Percentage of Original
Occurring
Subordinate Certificate Balance
---------------------
-------------------------------
December 2010 through
30%
November 2011
December 2011 through
35%
November 2012
December 2012 through
40%
November 2013
December 2013 through
45%
November 2014
December 2014 and
50%
thereafter
Servicer: Bank of America, a national banking association, or
its
successor in interest, in its capacity as
servicer of the Mortgage Loans, or any
successor servicer appointed as herein
provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Business Day
immediately preceding such Distribution Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the
Servicer pursuant to Section 3.08(b).
Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net
of any losses realized since the
preceding Distribution Date from Permitted
Investments of funds in the Servicer
Custodial Account.
Servicer's Certificate: The monthly report required by Section
4.01.
Servicing Advances: All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred in the
performance by the Servicer of its
servicing obligations, including, but not
limited to (i) the preservation,
restoration and protection of a Mortgaged
Property, (ii) expenses reimbursable
to the Servicer pursuant to Section 3.14
and any enforcement or judicial
proceedings, including foreclosures, (iii)
the management and liquidation of any
REO Property and (iv) compliance with the
obligations under Section 3.12.
Servicing Compensation: With respect to each Distribution Date,
the
sum of (i) the aggregate Servicing Fee for
such Distribution Date subject to
reduction as provided in Section 3.17, (ii)
any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv)
the Servicer Custodial Account
Reinvestment Income for such Distribution
Date.
Servicing Fee: With respect to each Mortgage Loan and
Distribution
Date, the amount of the fee payable to the
Servicer, which shall, for such
Distribution Date, be equal to one-twelfth
of the product of the Servicing Fee
Rate with respect to such Mortgage Loan and
the Stated Principal Balance of such
Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the
same Stated Principal Balance and period
respecting which any related interest
payment on a Mortgage Loan is computed. The
Servicer's right to receive the
Servicing Fee is limited to, and payable
solely from, the interest portion
(including recoveries with respect to
interest from Liquidation Proceeds and
other proceeds, to the extent permitted by
Section 3.11) of related Monthly
Payments collected by the Servicer, or as
otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.250%
per
annum.
Servicing File: The items pertaining to a particular Mortgage
Loan
referred to in Exhibit J hereto, and any
additional documents required to be
added to the Servicing File pursuant to the
Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and
servicing of the Mortgage Loans whose
name appears on a list of servicing
officers furnished to the Trustee by the
Servicer, as such list may from time to
time be amended.
Servicing Transfer Costs: All reasonable costs and expenses
incurred
by the Trustee in connection with the
transfer of servicing from a predecessor
servicer, including, without limitation,
any costs or expenses associated with
the complete transfer of all servicing data
and the completion, correction or
manipulation of such servicing data as may
be required by the Trustee to correct
any errors or insufficiencies in the
servicing data or otherwise to enable the
Trustee to service the Mortgage Loans
properly and effectively.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In
Shift Percentage
--------------------------------
----------------
December 2005 through
0%
November 2010
December 2010 through
30%
November 2011
December 2011 through
40%
November 2012
December 2012
through
60%
November 2013
December 2013 through
80%
November 2014
December 2014 and thereafter
100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage
Loan as of the Due Date immediately
preceding such date as specified in the
amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason
of any moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments and
Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date
and irrespective of any delinquency in
payment by the related Mortgagor, and after
giving effect to any Deficient
Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the
Class 1-LS Interest, Class 2-LS
Interest, Class 3-LS Interest and Class
4-LS Interest equal to the ratio among
the Group Subordinate Amounts of Loan Group
1, Loan Group 2, Loan Group 3 and
Loan Group 4.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such
Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior
Prepayment Percentage for such Loan Group for
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount
equal to the sum of (i) the
Subordinate Percentage for such Loan Group
of the applicable Non-PO Percentage
of the amounts described in clauses (i)(a)
through (d) of the definition of
"Non-PO Principal Amount" for such
Distribution Date and Loan Group and (ii) the
Subordinate Prepayment Percentage of (1)
the applicable Non-PO Percentage of the
amounts described in clauses (i)(e) and (f)
and (2) the amount described in
clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution
Date and Loan Group.
Subservicer: Any Person with which the Servicer has entered into
a
Subservicing Agreement and which satisfies
the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in
the
event the Subservicer is an affiliate of
the Servicer, need not be in writing)
between the Servicer and any Subservicer
relating to servicing and/or
administration of certain Mortgage Loans as
provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the
date of such substitution (i) have a
Stated Principal Balance, after deduction
of the principal portion of the
Monthly Payment due in the month of
substitution, not in excess of, and not more
than 10% less than, the Stated Principal
Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate
equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not
higher than that of the Defective
Mortgage Loan; (iv) have a remaining term
to maturity not greater than (and not
more than one year less than) that of the
Defective Mortgage Loan; and (v)
comply with each Mortgage Loan
representation and warranty set forth in this
Agreement relating to the Defective
Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a
Defective Mortgage Loan if such
Substitute Mortgage Loans meet the
foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner
provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss.
301.6231(a)(7)-1.
Telerate page 3750: As defined in Section 5.09.
Total Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Total Senior Percentage: With respect to any Distribution Date,
the
percentage, carried six places rounded up,
obtained by dividing the aggregate
Class Certificate Balance of the Senior
Certificates (but not the Class CB-PO
and Class 4-PO Certificates) immediately
prior to such Distribution Date by the
aggregate Pool Stated Principal Balance
(Non-PO Portion) of all Loan Groups for
such Distribution Date.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S.
Department of the Treasury.
Trust: The trust created by this Agreement.
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the
Mortgage Loans, such assets as shall from
time to time be identified as deposited in
the Servicer Custodial Account, the
Certificate Account or the Reserve Funds,
in accordance with this Agreement, REO
Property, the Primary Insurance Policies,
any other Required Insurance Policy,
the right to receive any BPP Mortgage Loan
Payment, the right to receive
amounts, if any, payable on behalf of any
Mortgagor from the Buy-Down Account
relating to any Buy-Down Mortgage Loan and
the Trustee's rights under the Yield
Maintenance Agreements. The Buy-Down
Account shall not be part of the Trust
Estate.
Trustee: Wells Fargo Bank, N.A., and its successors-in-interest
and,
if a successor trustee is appointed
hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date and Loan Group, an
amount
equal to one-twelfth of the Trustee Fee
Rate multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans in
the Related Loan Group immediately
following the Due Date in the month
preceding the month in which such
Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0045%
per
annum.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Middle-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS
Interest, Class 1-LPO Interest, Class 1-LWIO
Interest, Class 2-L Interest, Class 2-LS
Interest, Class 2-LPO Interest, Class
2-LWIO Interest, Class 3-L Interest, Class
3-LS Interest, Class 3-LPO Interest,
Class 3-LWIO Interest, Class 4-L Interest,
Class 4-LS Interest, Class 4-LPO
Interest and Class 4-LWIO Interest are
Uncertificated Lower-Tier Interests.
Uncertificated Middle-Tier Interest: A regular interest in the
Middle-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-CB-M1 Interest, Class 1-CB-M3
Interest, Class 1-CB-MUR Interest,
Class 1-CB-MIO Interest, Class 1-CB-MPO
Interest, Class 2-CB-M1 Interest, Class
2-CB-MIO Interest, Class 2-CB-MPO Interest,
Class 3-CB-M1 Interest, Class
3-CB-MIO Interest, Class 3-CB-MPO Interest,
Class 4-A-M1 Interest, Class 4-A-M3
Interest, Class 4-MIO Interest, Class 4-MPO
Interest, Class B-M1 Interest, Class
B-M2 Interest, Class B-M3 Interest, Class
B-M4 Interest, Class B-M5 Interest and
Class B-M6 Interest are Uncertificated
Middle-Tier Interests.
Underwriting Guidelines: The underwriting guidelines of Bank of
America.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the
Trustee pursuant to Section 3.08(f).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Middle-Tier Interests and such
amounts as shall from time to time be
deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the
case of a partnership, Treasury
Regulations are adopted that provide
otherwise) created or organized in or under
the laws of the United States, any state
thereof or the District of Columbia,
including an entity treated as a
corporation or partnership for federal income
tax purposes, an estate whose income is
subject to United States federal income
tax regardless of its source, or a trust if
a court within the United States is
able to exercise primary supervision over
the administration of such trust, and
one or more such U.S. Persons have the
authority to control all substantial
decisions of such trust (or, to the extent
provided in applicable Treasury
Regulations, certain trusts in existence on
August 20, 1996 which are eligible
to elect to be treated as U.S.
Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. As of any date of
determination, (a) 1% of all Voting Rights
shall be allocated to the Holders of
the Class 1-CB-2 Certificates, (b) 1% of
all Voting Rights shall be allocated to
the Holders of the Class CB-IO
Certificates, (c) 1% of all Voting Rights shall
be allocated to the Holders of the Class
4-A-2 Certificates, (d) 1% of all
Voting Rights shall be allocated to the
Holders of the Class 4-IO Certificates,
(e) 1% of all Voting Rights shall be
allocated to the Holder of the Residual
Certificate and (f) the remaining Voting
Rights shall be allocated among Holders
of the remaining Classes of Certificates in
proportion to the Certificate
Balances of their respective Certificates
on such date.
Yield Maintenance Agreement: Either of the Class 1-CB-1 Yield
Maintenance Agreement or the Class 4-A-1
Yield Maintenance Agreement.
Yield Maintenance Agreement Payment: Either of the Class 1-CB-1
Yield Maintenance Agreement Payment or the
Class 4-A-1 Yield Maintenance
Agreement Payment.
Yield Maintenance Amount: Either of the Class 1-CB-1 Yield
Maintenance Amount or the Class 4-A-1 Yield
Maintenance Amount.
Yield Maintenance Amount Shortfall: Either of the Class 1-CB-1
Yield
Maintenance Amount Shortfall or the Class
4-A-1 Yield Maintenance Amount
Shortfall.
Section 1.02 Interest Calculations. All calculations of
interest
will be made on a 360-day year consisting
of twelve 30-day months. All dollar
amounts calculated hereunder shall be
rounded to the nearest penny with one-half
of one penny being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and
delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to
the Trustee on behalf of the Trust
for the benefit of the Certificateholders,
without recourse, all the right,
title and interest of the Depositor in and
to the Mortgage Loans, including all
interest and principal received on or with
respect to the Mortgage Loans (other
than payments of principal and interest due
and payable on the Mortgage Loans on
or before the Cut-off Date). The foregoing
sale, transfer, assignment and set
over does not and is not intended to result
in a creation of an assumption by
the Trustee of any obligation of the
Depositor or any other Person in connection
with the Mortgage Loans or any agreement or
instrument relating thereto, except
as specifically set forth herein. In
addition, the Depositor, concurrently with
the execution and delivery hereof, hereby
sells, transfers, assigns, sets over
and otherwise conveys to the Trustee on
behalf of the Trust for the benefit of
the Certificateholders, without recourse,
the Depositor's rights to receive any
BPP Mortgage Loan Payment. It is agreed and
understood by the parties hereto
that it is not intended that any mortgage
loan be included in the Trust that is
a "High-Cost Home Loan" as defined in any
of (i) the New Jersey Home Ownership
Act effective November 27, 2003, (ii) the
New Mexico Home Loan Protection Act
effective January 1, 2004, (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
shall deliver or cause to be delivered to
the Trustee, for the benefit of the
Certificateholders, the following documents
or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the
following form: "Pay to the order of Wells Fargo Bank,
N.A., as trustee for
the holders of the Banc of America Alternative Loan
Trust 2005-11 Mortgage
Pass-Through Certificates, Series 2005-11, without
recourse," with all
necessary intervening endorsements showing a complete
chain of endorsement
from the originator to the Trustee (each such
endorsement being
sufficient to transfer all right, title and interest of
the party so
endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note);
(ii) except as provided below, the original recorded Mortgage
with
evidence of a
recording thereon, or if any such Mortgage has not been
returned from the
applicable recording office or has been lost, or if such
public recording
office retains the original recorded Mortgage, a copy of
such Mortgage
certified by the Depositor as being a true and correct copy of
the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a
duly
executed Assignment of
Mortgage to "Wells Fargo Bank, N.A., as trustee for
the holders of the
Banc of America Alternative Loan Trust 2005-11 Mortgage
Pass-Through
Certificates, Series 2005-11" (which may be included in a
blanket assignment or
assignments), together with, except as provided below,
originals of all
interim recorded assignments of such mortgage or a copy of
such interim
assignment certified by the Depositor as being a true and
complete copy of the
original recorded intervening assignments of Mortgage
(each such assignment,
when duly and validly completed, to be in recordable
form and sufficient to
effect the assignment of and transfer to the assignee
thereof, under the
Mortgage to which the assignment relates); provided that,
if the related
Mortgage has not been returned from the applicable public
recording office, such
Assignment of Mortgage may exclude the information to
be provided by the
recording office; and provided, further, if the related
Mortgage has been
recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS")
or its designee, no Assignment of Mortgage in favor
of the Trustee will be
required to be prepared or delivered and instead, the
Servicer shall take
all actions as are necessary to cause the Trust to be
shown as the owner of
the related Mortgage Loan on the records of MERS for
purposes of the system
of recording transfers of beneficial ownership of
mortgages maintained
by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension agreements,
if any, with evidence of recording thereon, if any;
(v) any of (A) the original or duplicate original mortgagee
title
insurance policy and
all riders thereto, (B) a title search showing no lien
(other than standard
exceptions of the type described in Section 2.04
(viii)) on the
Mortgaged Property senior to the lien of the Mortgage or (C)
an opinion of counsel
of the type customarily rendered in the applicable
jurisdiction in lieu
of a title insurance policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential
long-term lease, a
copy of the lease with evidence of recording indicated
thereon, or, if the
lease is in the process of being recorded, a photocopy
of the lease,
certified by an officer of the respective prior owner of such
Mortgage Loan or by
the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to
be a true
and correct copy of
the lease transmitted for recordation;
(viii) the original of any security agreement, chattel mortgage
or
equivalent document
executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals
of
the following
documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC
financing statements required by state law, evidencing a
complete
and unbroken line from the mortgagee to the Trustee with evidence
of
recording thereon (or in a form suitable for recordation).
provided, however, that on the Closing
Date, with respect to item (iii), the
Depositor has delivered to the Trustee a
copy of such Assignment of Mortgage in
blank and has caused the Servicer to retain
the completed Assignment of Mortgage
for recording as described below, unless
such Mortgage has been recorded in the
name of MERS or its designee. In addition,
if the Depositor is unable to deliver
or cause the delivery of any original
Mortgage Note due to the loss of such
original Mortgage Note, the Depositor may
deliver a copy of such Mortgage Note,
together with a lost note affidavit, and
shall thereby be deemed to have
satisfied the document delivery
requirements of this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim
recorded assignments, (C) all
assumption, modification, consolidation or
extension agreements, if any, or (D)
the lender's title policy, if any,
(together with all riders thereto) satisfying
the requirements of clause (ii), (iii),
(iv) or (v) above, respectively,
concurrently with the execution and
delivery hereof because such document or
documents have not been returned from the
applicable public recording office in
the case of clause (ii), (iii) or (iv)
above, or because the title policy, if
any, has not been delivered to either the
Servicer or the Depositor by the
applicable title insurer in the case of
clause (v) above, the Depositor shall
promptly deliver or cause to be delivered
to the Trustee or the Custodian on
behalf of the Trustee, in the case of
clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such
assumption, modification,
consolidation or extension agreement, as
the case may be, with evidence of
recording indicated thereon upon receipt
thereof from the public recording
office, but in no event shall any such
delivery of any such documents or
instruments be made later than one year
following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv)
above, there has been a continuing delay
at the applicable recording office or, in
the case of clause (v), there has been
a continuing delay at the applicable
insurer and the Depositor has delivered the
Officer's Certificate to such effect to the
Trustee. The Depositor shall forward
or cause to be forwarded to the Trustee (1)
from time to time additional
original documents evidencing an assumption
or modification of a Mortgage Loan
and (2) any other documents required to be
delivered by the Depositor or the
Servicer to the Trustee or the Custodian on
the Trustee's behalf. In the event
that the original Mortgage is not delivered
and in connection with the payment
in full of the related Mortgage Loan the
public recording office requires the
presentation of a "lost instruments
affidavit and indemnity" or any equivalent
document, because only a copy of the
Mortgage can be delivered with the
instrument of satisfaction or reconveyance,
the Servicer shall prepare, execute
and deliver or cause to be prepared,
executed and delivered, on behalf of the
Trust, such a document to the public
recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30
days thereafter, the Servicer shall
(except for any Mortgage which has been
recorded in the name of MERS or its
designee) (I) cause each Assignment of
Mortgage to be in proper form for
recording in the appropriate public office
for real property records within 30
days of the Closing Date and (II) at the
Depositor's expense, cause to be
delivered for recording in the appropriate
public office for real property
records the Assignments of the Mortgages to
the Trustee, except that, with
respect to any Assignment of a Mortgage as
to which the Servicer has not
received the information required to
prepare such assignment in recordable form,
the Servicer's obligation to do so and to
deliver the same for such recording
shall be as soon as practicable after
receipt of such information and in any
event within 30 days after the receipt
thereof and, no recording of an
Assignment of Mortgage will be required in
a state if either (i) the Depositor
furnishes to the Trustee an unqualified
Opinion of Counsel reasonably acceptable
to the Trustee to the effect that
recordation of such assignment is not
necessary under applicable state law to
preserve the Trustee's interest in the
related Mortgage Loan against the claim of
any subsequent transferee of such
Mortgage Loan or any successor to, or
creditor of, the Depositor or the
originator of such Mortgage Loan or (ii)
the recordation of an Assignment of
Mortgage in such state is not required by
either Rating Agency in order to
obtain the initial ratings on the
Certificates on the Closing Date. Set forth on
Exhibit L attached hereto is a list of all
states where recordation is required
by either Rating Agency to obtain the
initial ratings of the Certificates. The
Trustee may rely and shall be protected in
relying upon the information
contained in such Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of
delivering the above documents to
the Trustee, or the Custodian on the
Trustee's behalf, will cause the Servicer
to deposit in the Servicer Custodial
Account the portion of such payment that is
required to be deposited in the Servicer
Custodial Account pursuant to Section
3.08.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following
paragraph, the Trustee declares that
it, or the Custodian as its agent, will
hold the documents referred to in
Section 2.01 and the other documents
delivered to it constituting the Mortgage
Files, and that it will hold such other
assets as are included in the Trust
Estate, in trust for the exclusive use and
benefit of all present and future
Certificateholders. Upon execution and
delivery of this document, the Trustee
shall deliver or cause the Custodian to
deliver to the Depositor, the Trustee
and the Servicer a certification in the
form of Exhibit M hereto (the "Initial
Certification") to the effect that, except
as may be specified in a list of
exceptions attached thereto, it has
received the original Mortgage Note relating
to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, or cause the
Custodian to review, the Mortgage Files
in its possession, and shall deliver to the
Depositor, the Trustee and the
Servicer a certification in the form of
Exhibit N hereto (the ("Final
Certification") to the effect that, as to
each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be
specified in a list of exceptions
attached to such Final Certification, such
Mortgage File contains all of the
items required to be delivered pursuant to
Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a
Mortgage File which does not meet the
requirements of Section 2.01 or is omitted
from such Mortgage File, the Trustee
shall promptly so notify the Servicer and
the Depositor, or shall cause the
Custodian to promptly so notify the
Servicer and the Depositor. In performing
any such review, the Trustee or the
Custodian may conclusively rely on the
purported genuineness of any such document
and any signature thereon. It is
understood that the scope of the Trustee's
or the Custodian's review of the
Mortgage Files is limited solely to
confirming that the documents listed in
Section 2.01 have been received and further
confirming that any and all
documents delivered pursuant to Section
2.01 appear on their face to have been
executed and relate to the Mortgage Loans
identified in the Mortgage Loan
Schedule based solely upon the review of
items (i) and (xi) in the definition of
Mortgage Loan Schedule. Neither the Trustee
nor the Custodian shall have any
responsibility for determining whether any
document is valid and binding,
whether the text of any assignment or
endorsement is in proper or recordable
form, whether any document has been
recorded in accordance with the requirements
of any applicable jurisdiction, or whether
a blanket assignment is permitted in
any applicable jurisdiction. The Depositor
hereby covenants and agrees that it
will promptly correct or cure such defect
within 90 days from the date it was so
notified of such defect and, if the
Depositor does not correct or cure such
defect within such period, the Depositor
will either (a) substitute for the
related Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be
accomplished in the manner and subject to
the conditions set forth below or (b)
purchase such Mortgage Loan from the
Trustee at the Repurchase Price for such
Mortgage Loan; provided, however, that in
no event shall such a substitution
occur more than two years from the Closing
Date; provided, further, that such
substitution or repurchase shall occur
within 90 days of when such defect was
discovered if such defect will cause the
Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section
860G(a)(3) of the Code.
With respect to each Substitute Mortgage Loan the Depositor
shall
deliver to the Trustee, for the benefit of
the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment
of Mortgage (except for any Mortgage
which has been recorded in the name of MERS
or its designee), and such other
documents and agreements as are otherwise
required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No
substitution is permitted to be made in any
calendar month after the
Determination Date for such month. Monthly
Payments due with respect to any such
Substitute Mortgage Loan in the month of
substitution shall not be part of the
Trust Estate and will be retained by the
Depositor. For the month of
substitution, distributions to
Certificateholders will include the Monthly
Payment due for such month on any Defective
Mortgage Loan for which the
Depositor has substituted a Substitute
Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the
benefit
of the Certificateholders to reflect the
removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the
substitution of the Substitute Mortgage
Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule
to the Trustee and the Custodian. Upon such
substitution, each Substitute
Mortgage Loan shall be subject to the terms
of this Agreement in all respects,
and the Depositor shall be deemed to have
made to the Trustee with respect to
such Substitute Mortgage Loan, as of the
date of substitution, the
representations and warranties made
pursuant to Section 2.04. Upon any such
substitution and the deposit to the
Servicer Custodial Account of any required
Substitution Adjustment Amount (as
described in the next paragraph) and receipt
of a Request for Release, the Trustee shall
release, or shall direct the
Custodian to release, the Mortgage File
relating to such Defective Mortgage Loan
to the Depositor and shall execute and
deliver at the Depositor's direction such
instruments of transfer or assignment
prepared by the Depositor, in each case
without recourse, as shall be necessary to
vest title in the Depositor, or its
designee, to the Trustee's interest in any
Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Depositor substitutes one or more
Substitute Mortgage Loans for one or more
Defective Mortgage Loans, the amount
(if any) by which the aggregate principal
balance of all such Substitute
Mortgage Loans in a Loan Group as of the
date of substitution is less than the
aggregate Stated Principal Balance of all
such Defective Mortgage Loans in such
Loan Group (after application of the
principal portion of the Monthly Payments
due in the month of substitution) (the
"Substitution Adjustment Amount" for such
Loan Group) plus an amount equal to the
aggregate of any unreimbursed Advances
with respect to such Defective Mortgage
Loans shall be deposited into the
Servicer Custodial Account by the Depositor
on or before the Remittance Date for
the Distribution Date in the month
succeeding the calendar month during which
the related Mortgage Loan is required to be
purchased or replaced hereunder.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage
File in accordance with and subject to
the terms and conditions set forth herein.
The Servicer shall promptly deliver
to the Trustee, upon the execution or, in
the case of documents requiring
recording, receipt thereof, the originals
of such other documents or instruments
constituting the Mortgage File as come into
the Servicer's possession from time
to time.
It is understood and agreed that the obligation of the Depositor
to
substitute for or to purchase any Mortgage
Loan which does not meet the
requirements of Section 2.01 shall
constitute the sole remedy respecting such
defect available to the Trustee and any
Certificateholder against the Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect,
review or examine any such
documents, instruments, certificates or
other papers to determine that they are
genuine, enforceable, or appropriate for
the represented purpose or that they
are other than what they purport to be on
their face or (ii) to determine
whether any Mortgage File should include
any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii)
and (ix). In connection with making the
certifications required hereunder, to the
extent a title search or opinion of
counsel has been provided in lieu of a
title policy for any Mortgage Loan, the
Trustee shall only be responsible for
confirming that a title search or opinion
of counsel has been provided for such
Mortgage Loan and shall not be deemed to
have certified that the content of the
title search or opinion of counsel is
sufficient to meet the requirements of
Section 2.01(b)(v).
The Trustee is hereby directed to execute and deliver, on behalf
of
the Trust, the Yield Maintenance
Agreements.
Section 2.03 Representations, Warranties and Covenants of the
Servicer. The Servicer hereby makes the
following representations and warranties
to the Depositor and the Trustee, as of the
Closing Date:
(i) The Servicer is a national banking association duly
organized,
validly existing, and
in good standing under the federal laws of the United
States of America and
has all licenses necessary to carry on its business as
now being conducted
and is licensed, qualified and in good standing in each
of the states where a
Mortgaged Property is located if the laws of such
state require
licensing or qualification in order to conduct business of the
type conducted by the
Servicer. The Servicer has power and authority to
execute and deliver
this Agreement and to perform in accordance herewith;
the execution,
delivery and performance of this Agreement (including all
instruments of
transfer to be delivered pursuant to this Agreement) by the
Servicer and the
consummation of the transactions contemplated hereby have
been duly and validly
authorized. This Agreement, assuming due
authorization,
execution and delivery by the other parties hereto, evidences
the valid, binding and
enforceable obligation of the Servicer, subject to
applicable law except
as enforceability may be limited by (A) bankruptcy,
insolvency,
liquidation, receivership, moratorium, reorganization or other
similar laws affecting
the enforcement of creditors' rights generally or
creditors of national
banks and (B) general principles of equity, whether
enforcement is sought
in a proceeding in equity or at law. All requisite
corporate action has
been taken by the Servicer to make this Agreement valid
and binding upon the
Servicer in accordance with its terms.
(ii) No consent, approval, authorization or order is required for
the
transactions
contemplated by this Agreement from any court, governmental
agency or body, or
federal or state regulatory authority having jurisdiction
over the Servicer is
required or, if required, such consent, approval,
authorization or order
has been or will, prior to the Closing Date, be
obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the
ordinary course of business of the Servicer and will
not result in the
breach of any term or provision of the charter or by-laws
of the Servicer or result in
the breach of any term or provision of, or
conflict with or
constitute a default under or result in the acceleration of
any obligation under,
any agreement, indenture or loan or credit agreement
or other instrument to
which the Servicer or its property is subject, or
result in the
violation of any law, rule, regulation, order, judgment or
decree to which the
Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or,
to the best knowledge
of the Servicer, threatened against the Servicer
which, either
individually or in the aggregate, would result in any material
adverse change in the
business, operations, financial condition, properties
or assets of the Servicer, or in
any material impairment of the right or
ability of the
Servicer to carry on its business substantially as now
conducted or which
would draw into question the validity of this Agreement
or the Mortgage Loans
or of any action taken or to be taken in connection
with the obligations
of the Servicer contemplated herein, or which would
materially impair the
ability of the Servicer to perform under the terms of
this Agreement.
(v) The Servicer has fully furnished, and shall continue to
fully
furnish for so long as
it is servicing the Group 1, Group 2 and Group 3
Mortgage Loans
hereunder, in accordance with the Fair Credit Reporting Act
and its implementing
regulations, accurate and complete information on the
related Mortgagor
credit files to Equifax, Experian and Trans Union Credit
Information Company on
a monthly basis.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the
respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as
to
the Mortgage Loans. The Depositor hereby
represents and warrants to the Trustee
with respect to the Mortgage Loans or each
Mortgage Loan, as the case may be, as
of the date hereof or such other date set
forth herein that as of the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule is true
and
correct in all
material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance
premiums, leasehold payments, including assessments
payable in future
installments or other outstanding charges affecting the
lien priority of the
related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not
been
impaired, waived,
altered or modified in any respect, except by written
instruments, recorded
in the applicable public recording office if necessary
to maintain the lien
priority of the Mortgage, and which have been delivered
to the Trustee; the
substance of any such waiver, alteration or modification
has been approved by
the insurer under the Primary Insurance Policy, if any,
the title insurer, to
the extent required by the related policy, and is
reflected on the
Mortgage Loan Schedule. No instrument of waiver, alteration
or modification has
been executed, and no Mortgagor has been released, in
whole or in part,
except in connection with an assumption agreement approved
by the insurer under
the Primary Insurance Policy, if any, the title
insurer, to the extent
required by the policy, and which assumption
agreement has been
delivered to the Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any
right of
rescission, set-off,
counterclaim or defense, including the defense of
usury, nor will the
operation of any of the terms of the Mortgage Note and
the Mortgage, or the
exercise of any right thereunder, render either the
Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject
to any right of
rescission, set-off, counterclaim or defense, including the
defense of usury and
no such right of rescission, set-off, counterclaim or
defense has been
asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by an
insurer
generally acceptable
to prudent mortgage lending institutions against loss
by fire, hazards of
extended coverage and such other hazards as are
customary in the area
the Mortgaged Property is located, pursuant to
insurance policies
conforming to the requirements of Customary Servicing
Procedures and this
Agreement. All such insurance policies contain a
standard mortgagee
clause naming the originator of the Mortgage Loan, its
successors and assigns
as mortgagee and all premiums thereon have been paid.
If the Mortgaged
Property is in an area identified on a flood hazard map or
flood insurance rate
map issued by the Federal Emergency Management Agency
as having special
flood hazards (and such flood insurance has been made
available), a flood
insurance policy meeting the requirements of the current
guidelines of the
Federal Insurance Administration is in effect which policy
conforms to the
requirements of FNMA or FHLMC. The Mortgage obligates the
Mortgagor thereunder
to maintain all such insurance at the Mortgagor's cost
and expense, and on
the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to
maintain such insurance at Mortgagor's cost and expense
and to seek
reimbursement therefor from the Mortgagor.
(vi) Any and all requirements of any federal, state or local
law
including, without
limitation, usury, truth in lending, real estate
settlement procedures,
consumer credit protections, all applicable predatory
and abusive lending
laws, equal credit opportunity or disclosure laws
applicable to the
origination and servicing of Mortgage Loan have been
complied with.
(vii) The Mortgage has not been satisfied, canceled, subordinated
or
rescinded, in whole or
in part (other than as to Principal Prepayments in
full which may have
been received prior to the Closing Date), and the
Mortgaged Property has
not been released from the lien of the Mortgage, in
whole or in part, nor
has any instrument been executed that would effect any
such satisfaction,
cancellation, subordination, rescission or release.
(viii) The Mortgage is a valid, existing and enforceable first lien
on
the Mortgaged
Property, including all improvements on the Mortgaged Property
subject only to (A)
the lien of current real property taxes and assessments
not yet due and
payable, (B) covenants, conditions and restrictions, rights
of way, easements and
other matters of the public record as of the date of
recording being
acceptable to mortgage lending institutions generally and
specifically referred
to in the lender's title insurance policy delivered to
the originator of the
Mortgage Loan and which do not adversely affect the
Appraised Value of the
Mortgaged Property, (C) if the Mortgaged Property
consists of Co-op
Shares, any lien for amounts due to the cooperative
housing corporation
for unpaid assessments or charges or any lien of any
assignment of rents or
maintenance expenses secured by the real property
owned by the
cooperative housing corporation, and (D) other matters to which
like properties are
commonly subject which do not materially interfere with
the benefits of the
security intended to be provided by the Mortgage or the
use, enjoyment, value
or marketability of the related Mortgaged Property.
Any security
agreement, chattel mortgage or equivalent document related to
and delivered in
connection with the Mortgage Loan establishes and creates a
valid, existing and
enforceable first lien and first priority security
interest on the
property described therein and the Depositor has the full
right to sell and
assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine and
each is
the legal, valid and
binding obligation of the maker thereof, enforceable in
accordance with its
terms except as enforceability may be limited by (A)
bankruptcy,
insolvency, liquidation, receivership, moratorium,
reorganization or
other similar laws affecting the enforcement of the rights
of creditors and (B)
general principles of equity, whether enforcement is
sought in a proceeding
in equity or at law.
(x) All parties to the Mortgage Note and the Mortgage had legal
capacity
to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note
and the Mortgage, and
the Mortgage Note and the Mortgage have been duly and
properly executed by
such parties.
(xi) The proceeds of the Mortgage Loan have been fully disbursed to
or
for the account of the
Mortgagor and there is no obligation for the
Mortgagee to advance
additional funds thereunder and any and all
requirements as to
completion of any on-site or off-site improvements and as
to disbursements of
any escrow funds therefor have been complied with. All
costs, fees and
expenses incurred in making or closing the Mortgage Loan and
the recording of the
Mortgage have been paid, and the Mortgagor is not
entitled to any refund
of any amounts paid or due to the Mortgagee pursuant
to the Mortgage Note
or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties which
have
had any interest in
the Mortgage Loan, whether as mortgagee, assignee,
pledgee or otherwise,
are (or, during the period in which they held and
disposed of such
interest, were) in compliance with any and all applicable
"doing business" and
licensing requirements of the laws of the state wherein
the Mortgaged Property
is located.
(xiii) (A) The Mortgage Loan is covered by an ALTA lender's
title
insurance policy,
acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or
FHLMC and qualified to do business in the jurisdiction
where the Mortgaged
Property is located, insuring (subject to the exceptions
contained in (viii)(A)
and (B) above) the Seller, its successors and assigns
as to the first
priority lien of the Mortgage in the original principal
amount of the Mortgage
Loan, (B) a title search has been done showing no
lien (other than the
exceptions contained in (viii)(A) and (B) above) on the
related Mortgaged
Property senior to the lien of the Mortgage or (C) in the
case of any Mortgage
Loan secured by a Mortgaged Property located in a
jurisdiction where
such policies are generally not available, an opinion of
counsel of the type
customarily rendered in such jurisdiction in lieu of
title insurance is
instead received. For each Mortgage Loan covered by a
title insurance policy
(x) the Depositor is the sole insured of such
lender's title
insurance policy, and such lender's title insurance policy is
in full force and
effect and will be in full force and effect upon the
consummation of the
transactions contemplated by this Agreement and (y) no
claims have been made
under such lender's title insurance policy, and the
Depositor has not
done, by act or omission, anything which would impair the
coverage of such
lender's title insurance policy.
(xiv) There is no default, breach, violation or event of
acceleration
existing under the
Mortgage or the Mortgage Note and no event which, with
the passage of time or
with notice and the expiration of any grace or cure
period, would
constitute a default, breach, violation or event of
acceleration, and the
Seller has not waived any default, breach, violation
or event of
acceleration.
(xv) As of the date of origination of the Mortgage Loan, there had
been
no mechanics' or
similar liens or claims filed for work, labor or material
(and no rights are
outstanding that under law could give rise to such lien)
affecting the relating
Mortgaged Property which are or may be liens prior
to, or equal or
coordinate with, the lien of the related Mortgage.
(xvi) All improvements which were considered in determining the
Appraised Value of the
related Mortgaged Property lay wholly within the
boundaries and
building restriction lines of the Mortgaged Property, and no
improvements on
adjoining properties encroach upon the Mortgaged Property.
(xvii) The Mortgage Loan was originated by a savings and loan
association, savings
bank, commercial bank, credit union, insurance company,
or similar institution
which is supervised and examined by a federal or
state authority, or by
a mortgagee approved by the Secretary of Housing and
Urban Development
pursuant to sections 203 and 211 of the National Housing
Act.
(xviii) Principal payments on the Mortgage Loan commenced no more
than
sixty days after the
proceeds of the Mortgaged Loan were disbursed. The
Mortgage Loans are 10-
to 30-year fixed rate mortgage loans having an
original term to
maturity of not more than 30 years, with interest payable
in arrears on the
first day of the month. Each Mortgage Note requires a
monthly payment which
is sufficient to fully amortize the original principal
balance over the
original term thereof and to pay interest at the related
Mortgage Interest
Rate. The Mortgage Note does not permit negative
amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge,
threatened for the
total or partial condemnation of the Mortgaged Property.
The Mortgaged Property
is in good repair and is undamaged by waste, fire,
earthquake or earth
movement, windstorm, flood, tornado or other casualty,
so as to affect
adversely the value of the Mortgaged Property as security
for the Mortgage Loan
or the use for which the premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary
and
enforceable provisions
such as to render the rights and remedies of the
holder thereof
adequate for the realization against the Mortgaged Property
of the benefits of the
security provided thereby, including (A) in the case
of a Mortgage
designated as a deed of trust, by trustee's sale, and (B)
otherwise by judicial
foreclosure. To the best of the Depositor's knowledge,
following the date of
origination of the Mortgage Loan, the Mortgaged
Property has not been
subject to any bankruptcy proceeding or foreclosure
proceeding and the
Mortgagor has not filed for protection under applicable
bankruptcy laws. There
is no homestead or other exemption or right available
to the Mortgagor or
any other person which would interfere with the right to
sell the Mortgaged
Property at a trustee's sale or the right to foreclose
the Mortgage.
(xxi) Other than any Borrowers Protection Plan(R) addendum to
the
Mortgage Note of a BPP
Mortgage Loan, the Mortgage Note and Mortgage are on
forms acceptable to
FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by any
collateral except the
lien of the corresponding Mortgage on the Mortgaged
Property and the
security interest of any applicable security agreement or
chattel mortgage
referred to in (viii) above.
(xxiii) Each appraisal of the related Mortgaged Property, is in a
form
acceptable to FNMA or
FHLMC and such appraisal complies with the
requirements of
FIRREA, and was made and signed, prior to the approval of
the Mortgage Loan
application, by a Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust, a
trustee,
duly qualified under
applicable law to serve as such, has been properly
designated and
currently so serves, and no fees or expenses are or will
become payable by the
Trustee to the trustee under the deed of trust, except
in connection with a
trustee's sale after default by the Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan, no
Mortgage
Loan has a shared
appreciation or other contingent interest feature and no
Mortgage Loan is a
Buy-Down Mortgage Loan.
(xxvi) The Mortgagor has received all disclosure materials required
by
applicable law with
respect to the making of mortgage loans of the same type
as the Mortgage Loan
and rescission materials required by applicable law if
the Mortgage Loan is a
Refinance Mortgage Loan.
(xxvii) Each Primary Insurance Policy to which any Mortgage Loan
is
subject will be issued
by an insurer acceptable to FNMA or FHLMC, which
insures that portion
of the Mortgage Loan in excess of the portion of the
Appraised Value of the
Mortgaged Property required by FNMA. All provisions
of such Primary
Insurance Policy have been and are being complied with, such
policy is in full
force and effect, and all premiums due thereunder have
been paid. Any
Mortgage subject to any such Primary Insurance Policy
obligates the
Mortgagor thereunder to maintain such insurance and to pay all
premiums and charges
in connection therewith at least until Loan-to-Value
Ratio of such Mortgage Loan
is reduced to less than 80%. The Mortgage
Interest Rate for the
Mortgage Loan does not include any such insurance
premium.
(xxviii) To the best of the Depositor's knowledge as of the date
of
origination of the
Mortgage Loan, (A) the Mortgaged Property is lawfully
occupied under
applicable law, (B) all inspections, licenses and
certificates required
to be made or issued with respect to all occupied
portions of the
Mortgaged Property and, with respect to the use and
occupancy of the same,
including but not limited to certificates of
occupancy, have been
made or obtained from the appropriate authorities and
(C) no improvement
located on or part of the Mortgaged Property is in
violation of any
zoning law or regulation.
(xxix) The Assignment of Mortgage (except with respect to any
Mortgage
that has been recorded
in the name of MERS or its designee) is in recordable
form and is acceptable
for recording under the laws of the jurisdiction in
which the Mortgaged
Property is located.
(xxx) All payments required to be made prior to the Cut-off Date
for
such Mortgage Loan
under the terms of the Mortgage Note have been made and
no Mortgage Loan has
been more than 30 days delinquent more than once in the
twelve month period
immediately prior to the Cut-off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or
Servicer is
in possession of a
complete Mortgage File except for the documents which
have been delivered to
the Trustee or which have been submitted for
recording and not yet
returned.
(xxxii) Immediately prior to the transfer and assignment
contemplated
herein, the Depositor
was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans
were not assigned or pledged by the Depositor and the
Depositor had good and
marketable title thereto, and the Depositor had full
right to transfer and
sell the Mortgage Loans to the Trustee free and clear
of any encumbrance,
participation interest, lien, equity, pledge, claim or
security interest and
had full right and authority subject to no interest or
participation in, or
agreement with any other party to sell or otherwise
transfer the Mortgage
Loans.
(xxxiii) Any future advances made prior to the Cut-off Date have
been
consolidated with the
outstanding principal amount secured by the Mortgage,
and the secured
principal amount, as consolidated, bears a single interest
rate and single repayment
term. The lien of the Mortgage securing the
consolidated principal
amount is expressly insured as having first lien
priority by a title
insurance policy, an endorsement to the policy insuring
the mortgagee's
consolidated interest or by other title evidence acceptable
to FNMA and FHLMC. The
consolidated principal amount does not exceed the
original principal
amount of the Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with
the
applicable
Underwriting Guidelines in effect at the time of origination
with
exceptions thereto
exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term residential
lease,
(1) the lessor under
the lease holds a fee simple interest in the land; (2)
the terms of such
lease expressly permit the mortgaging of the leasehold
estate, the assignment
of the lease without the lessor's consent and the
acquisition by the
holder of the Mortgage of the rights of the lessee upon
foreclosure or
assignment in lieu of foreclosure or provide the holder of
the Mortgage with
substantially similar protections; (3) the terms of such
lease do not (a) allow
the termination thereof upon the lessee's default
without the holder of
the Mortgage being entitled to receive written notice
of, and opportunity to
cure, such default, (b) allow the termination of the
lease in the event of
damage or destruction as long as the Mortgage is in
existence, (c)
prohibit the holder of the Mortgage from being insured (or
receiving proceeds of
insurance) under the hazard insurance policy or
policies relating to
the Mortgaged Property or (d) permit any increase in
the rent other than
pre-established increases set forth in the lease; (4)
the original term of
such lease is not less than 15 years; (5) the term of
such lease does not
terminate earlier than five years after the maturity
date of the Mortgage
Note; and (6) the Mortgaged Property is located in a
jurisdiction in which
the use of leasehold estates in transferring ownership
in residential
properties is a widely accepted practice.
(xxxvi) No more than 0.69%, 0.29%, 0.20% and 0.53% (by Cut-off
Date
Principal Balance) of
the Group 1, Group 2, Group 3 and Group 4 Mortgage
Loans, respectively,
are secured by long-term residential leases.
(xxxvii) The Mortgaged Property is located in the state identified
in
the Mortgage Loan
Schedule and consists of a parcel of real property with a
detached single family
residence erected thereon, or a two- to four-family
dwelling, or an
individual condominium unit, or an individual unit in a
planned unit
development, or, in the case of Mortgage Loans secured by Co-op
Shares, leases or
occupancy agreements; provided, however, that any
condominium project or
planned unit development generally conforms with the
applicable
Underwriting Guidelines regarding such dwellings, and no
residence or dwelling
is a mobile home or a manufactured dwelling.
(xxxviii) The Depositor used no adverse selection procedures in
selecting the Mortgage
Loan for inclusion in the Trust Estate.
(xxxix) Each Mortgage Loan is a "qualified mortgage" within the
meaning
of Section 860G(a)(3)
of the Code.
(xl) With respect to each Mortgage where a lost note affidavit has
been
delivered to the
Trustee in place of the related Mortgage Note, the related
Mortgage Note is no
longer in existence.
(xli) No Mortgage Loan is a "high cost" loan as defined under
any
federal, state or
local law applicable to such Mortgage Loan at the time of
its origination.
(xlii) No Group 1, Group 2 or Group 3 Mortgage Loan is subject to
the
provisions of the Home Ownership
and Equity Protection Act of 1994, as
amended.
(xliii) No Group 1, Group 2 or Group 3 Mortgage Loan is a "high
cost
home," "covered"
(excluding home loans defined as "covered home loans"
pursuant to clause (1)
of the definition of that term in the New Jersey Home
Ownership Security Act
of 2002), "high risk home" or "predatory" loan as
defined under any
applicable state, federal or local law (or a similarly
classified loan using
different terminology under a law imposing heightened
regulatory scrutiny or
additional legal liability for residential mortgage
loans having high
interest rates, points and/or fees).
(xliv) None of the proceeds of any Group 1, Group 2 or Group 3
Mortgage
Loan were used to
finance single-premium credit life insurance policies.
(xlv) No Group 1, Group 2 or Group 3 Mortgage Loan provides for
the
payment of a
prepayment premium.
(xlvi) No Group 1, Group 2 or Group 3 Mortgage Loan originated on
or
after August 1, 2004
requires the borrower to submit to arbitration to
resolve any dispute
arising out of or relating in any way to the mortgage
loan transaction.
(xlvii) As of the date of origination, no Group 1, Group 2 or Group
3
Mortgage Loan had a
principal balance in excess of FHLMC's dollar amount
limits for conforming
one- to four-family mortgage loans.
Notwithstanding the foregoing, no representations or warranties
are
made by the Depositor as to the
environmental condition of any Mortgaged
Property; the absence, presence or effect
of hazardous wastes or hazardous
substances on any Mortgaged Property; any
casualty resulting from the presence
or effect of hazardous wastes or hazardous
substances on, near or emanating from
any Mortgaged Property; the impact on
Certificateholders of any environmental
condition or presence of any hazardous
substance on or near any Mortgaged
Property; or the compliance of any
Mortgaged Property with any environmental
laws, nor is any agent, Person or entity
otherwise affiliated with the Depositor
authorized or able to make any such
representation, warranty or assumption of
liability relative to any Mortgaged
Property. In addition, no representations or
warranties are made by the Depositor with
respect to the absence or effect of
fraud in the origination of any Mortgage
Loan.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall
survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and
shall inure to the benefit of the
Trustee, notwithstanding any restrictive or
qualified endorsement or assignment.
Upon discovery by either the Depositor, the Servicer, the Trustee
or
the Custodian that any of the
representations and warranties set forth in this
Section 2.04 is not accurate (referred to
herein as a "breach") and that such
breach (in the case of the representations
and warranties set forth in clauses
(i) through (xli) of this Section 2.04)
materially and adversely affects the
interests of the Certificateholders in the
related Mortgage Loan, the party
discovering such breach shall give prompt
written notice to the other parties
(any Custodian being so obligated under a
Custodial Agreement); provided that
any such breach that causes the Mortgage
Loan not to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of
the Code shall be deemed to
materially and adversely affect the
interests of the Certificateholders. Within
90 days of its discovery or its receipt of
notice of any such breach, the
Depositor shall cure such breach in all
material respects or shall either (i)
repurchase the Mortgage Loan or any
property acquired in respect thereof from
the Trustee at a price equal to the
Repurchase Price or (ii) if within two years
of the Closing Date, substitute for such
Mortgage Loan in the manner described
in Section 2.02; provided that if the
breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code,
any such repurchase or substitution must
occur within 90 days from the date the
breach was discovered. In addition to the
foregoing, if a breach of the
representation set forth in clause (vi) of
this Section 2.04 occurs as a result
of a violation of an applicable predatory
or abusive lending law, the Depositor
shall reimburse the Trust for all costs or
damages incurred by the Trust as a
result of the violation of such law (such
amount, the "Reimbursement Amount").
The Repurchase Price of any repurchase
described in this paragraph, the
Substitution Adjustment Amount, if any, and
any Reimbursement Amount shall be
deposited in the Servicer Custodial
Account. It is understood and agreed that,
except with respect to the second preceding
sentence, the obligation of the
Depositor to repurchase or substitute for
any Mortgage Loan or Mortgaged
Property as to which such a breach has
occurred and is continuing shall
constitute the sole remedy respecting such
breach available to
Certificateholders, or to the Trustee on
behalf of Certificateholders, and such
obligation shall survive until termination
of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Senior
Certificates (other than the Class
CB-IO, Class CB-PO and Class 1-CB-R
Certificates), the Classes of Class B
Certificates and each Component as "regular
interests" and the Class R-U
Interest as the single class of "residual
interest" in the Upper-Tier REMIC for
the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively. The
Depositor hereby further designates (i) the
Uncertificated Middle-Tier Interests
as classes of "regular interests" and the
Class R-M Interest as the single class
of "residual interest" in the Middle-Tier
REMIC and (ii) the Uncertificated
Lower-Tier Interests as classes of "regular
interests" and the Class R-L
Interest as the single class of "residual
interest" in the Lower-Tier REMIC for
the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each of
the Upper-Tier REMIC, Middle-Tier
REMIC and Lower-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest
possible maturity date" of the regular
interests in the Upper-Tier REMIC,
Middle-Tier REMIC and Lower-Tier REMIC is
November 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Trustee
(i)
acknowledges the issuance of and hereby
declares that it holds the
Uncertificated Lower-Tier Interests on
behalf of the Middle-Tier REMIC and the
Certificateholders and that it holds the
Uncertificated Middle-Tier Interests on
behalf of the Upper-Tier REMIC and the
Certificateholders and (ii) has executed
and delivered to or upon the order of the
Depositor, in exchange for the
Mortgage Loans, Uncertificated Lower-Tier
Interests and Uncertificated
Middle-Tier Interests, together with all
other assets included in the definition
of "Trust Estate," receipt of which is
hereby acknowledged, Certificates in
authorized denominations which, together
with the Uncertificated Middle-Tier
Interests and the Uncertificated Lower-Tier
Interests, evidence ownership of the
entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on
behalf
of the Certificateholders, the Servicer
shall service and administer the
Mortgage Loans, all in accordance with the
terms of this Agreement, Customary
Servicing Procedures, applicable law and
the terms of the Mortgage Notes and
Mortgages. In connection with such
servicing and administration, the Servicer
shall have full power and authority, acting
alone and/or through Subservicers as
provided in Section 3.02, to do or cause to
be done any and all things that it
may deem necessary or desirable in
connection with such servicing and
administration including, but not limited
to, the power and authority, subject
to the terms hereof, (a) to execute and
deliver, on behalf of the
Certificateholders and the Trustee,
customary consents or waivers and other
instruments and documents, (b) to consent,
with respect to the Mortgage Loans it
services, to transfers of any Mortgaged
Property and assumptions of the Mortgage
Notes and related Mortgages (but only in
the manner provided in this Agreement),
(c) to collect any Insurance Proceeds and
other Liquidation Proceeds relating to
the Mortgage Loans it services, and (d) to
effectuate foreclosure or other
conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan
it services. The Servicer shall represent
and protect the interests of the Trust
in the same manner as it protects its own
interests in mortgage loans in its own
portfolio in any claim, proceeding or
litigation regarding a Mortgage Loan and
shall not make or permit any modification,
waiver or amendment of any term of
any Mortgage Loan, except as provided
pursuant to Section 3.21. Without limiting
the generality of the foregoing, the
Servicer, in its own name or in the name of
any Subservicer or the Depositor and the
Trustee, is hereby authorized and
empowered by the Depositor and the Trustee,
when the Servicer or any
Subservicer, as the case may be, believes
it appropriate in its reasonable
judgment, to execute and deliver, on behalf
of the Trustee, the Depositor, the
Certificateholders or any of them, any and
all instruments or agreements of
satisfaction, cancellation, default,
assumption, modification, discharge,
partial or full release, and all other
comparable instruments and agreements,
with respect to the Mortgage Loans it
services, and with respect to the related
Mortgaged Properties held for the benefit
of the Certificateholders. To the
extent that the Servicer is not permitted
to execute and deliver such documents
pursuant to the preceding sentence, the
Servicer shall prepare and deliver to
the Depositor and/or the Trustee such
documents requiring execution and delivery
by either or both of them as are necessary
or appropriate to enable the Servicer
to service and administer the Mortgage
Loans it services. Upon receipt of such
documents, the Depositor and/or the
Trustee, upon the direction of the Servicer,
shall promptly execute such documents and
deliver them to the Servicer.
Alternatively, upon the request of the
Servicer, the Trustee shall execute and
deliver to the Servicer any additional
powers of attorney and other documents
prepared by the Servicer that are
reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and
administrative duties under this
Agreement.
In accordance with the standards of the preceding paragraph,
the
Servicer shall advance or cause to be
advanced funds as necessary for the
purpose of effecting the payment of taxes
and assessments on the Mortgaged
Properties relating to the Mortgage Loans
it services, which Servicing Advances
shall be reimbursable in the first instance
from related collections from the
Mortgagors pursuant to Section 3.09, and
further as provided in Section 3.11.
The costs incurred by the Servicer, if any,
in effecting the timely payments of
taxes and assessments on the Mortgaged
Properties and related insurance premiums
shall not, for the purpose of calculating
monthly distributions to the
Certificateholders, be added to the Stated
Principal Balances of the related
Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement)
to the Trustee under this Agreement
is intended by the parties to be that of an
independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of
Servicer. (a) The Servicer may arrange for
the subservicing of any Mortgage Loan
it services by a Subservicer pursuant to a
Subservicing Agreement; provided,
however, that such subservicing arrangement
and the terms of the related
Subservicing Agreement must provide for the
servicing of such Mortgage Loan in a
manner consistent with the servicing
arrangements contemplated hereunder.
Notwithstanding the provisions of any
Subservicing Agreement, any of the
provisions of this Agreement relating to
agreements or arrangements between the
Servicer and a Subservicer or reference to
actions taken through a Subservicer
or otherwise, the Servicer shall remain
obligated and liable to the Depositor,
the Trustee and the Certificateholders for
the servicing and administration of
the Mortgage Loans it services in
accordance with the provisions of this
Agreement without diminution of such
obligation or liability by virtue of such
Subservicing Agreements or arrangements or
by virtue of indemnification from the
Subservicer and to the same extent and
under the same terms and conditions as if
the Servicer alone were servicing and
administering those Mortgage Loans. All
actions of each Subservicer performed
pursuant to the related Subservicing
Agreement shall be performed as agent of
the Servicer with the same force and
effect as if performed directly by the
Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed
to
have received any collections, recoveries
or payments with respect to the
Mortgage Loans it services that are
received by a Subservicer regardless of
whether such payments are remitted by the
Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the Servicer,
for
the benefit of the Trustee and the
Certificateholders, shall use its best
reasonable efforts to enforce the
obligations of each Subservicer engaged by the
Servicer under the related Subservicing
Agreement, to the extent that the
non-performance of any such obligation
would have a material and adverse effect
on a Mortgage Loan. Such enforcement,
including, without limitation, the legal
prosecution of claims, termination of
Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in
such form and carried out to such an
extent and at such time as the Servicer, in
its good faith business judgment,
would require were it the owner of the
related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at
its own expense, and shall be
reimbursed therefor only (i) from a general
recovery resulting from such
enforcement to the extent, if any, that
such recovery exceeds all amounts due in
respect of the related Mortgage Loan or
(ii) from a specific recovery of costs,
expenses or attorneys fees against the
party against whom such enforcement is
directed.
(d) Any Subservicing Agreement entered into by the Servicer
shall
provide that it may be assumed or
terminated by the Trustee, if the Trustee has
assumed the duties of the Servicer, or any
successor Servicer, at the Trustee's
or successor Servicer's option, as
applicable, without cost or obligation to the
assuming or terminating party or the Trust
Estate, upon the assumption by such
party of the obligations of the Servicer
pursuant to Section 8.05.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Servicer shall maintain, at its own
expense, a blanket fidelity bond and an
errors and omissions insurance policy, with
broad coverage on all officers,
employees or other persons acting in any
capacity requiring such persons to
handle funds, money, documents or papers
relating to the Mortgage Loans it
services. These policies must insure the
Servicer against losses resulting from
dishonest or fraudulent acts committed by
the Servicer's personnel, any
employees of outside firms that provide
data processing services for the
Servicer, and temporary contract employees
or student interns. Such fidelity
bond shall also protect and insure the
Servicer against losses in connection
with the release or satisfaction of a
Mortgage Loan without having obtained
payment in full of the indebtedness secured
thereby. No provision of this
Section 3.03 requiring such fidelity bond
and errors and omissions insurance
shall diminish or relieve the Servicer from
its duties and obligations as set
forth in this Agreement. The minimum
coverage under any such bond and insurance
policy shall be at least equal to the
corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC in the
FHLMC Sellers' & Servicers' Guide,
as amended or restated from time to time,
or in an amount as may be permitted to
the Servicer by express waiver of FNMA or
FHLMC.
Section 3.04 Access to Certain Documentation. The Servicer
shall
provide to the 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 upon reasonable and prior
written request and during normal business
hours at the offices designated by the
Servicer; provided that the Servicer
shall be entitled to be reimbursed by each
such Certificateholder for actual
expenses incurred by the Servicer in
providing such reports and access. Nothing
in this Section 3.04 shall limit the
obligation of the Servicer to observe any
applicable law and the failure of the
Servicer to provide access as provided in
this Section 3.04 as a result of such
obligation shall not constitute a breach
of this Section 3.04.
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments.
(a) With respect to each Mortgage
Loan with a Loan-to-Value Ratio in excess
of 80% or such other Loan-to-Value
Ratio as may be required by law, the
Servicer shall, without any cost to the
Trust Estate, maintain or cause the
Mortgagor to maintain in full force and
effect a Primary Insurance Policy insuring
that portion of the Mortgage Loan in
excess of a percentage in conformity with
FNMA requirements. The Servicer shall
pay or shall cause the Mortgagor to pay the
premium thereon on a timely basis,
at least until the Loan-to-Value Ratio of
such Mortgage Loan is reduced to 80%
or such other Loan-to-Value Ratio as may be
required by law. If such Primary
Insurance Policy is terminated, the
Servicer shall obtain from another insurer a
comparable replacement policy, with a total
coverage equal to the remaining
coverage of such terminated Primary
Insurance Policy. If the insurer shall cease
to be an insurer acceptable to FNMA or
FHLMC, the Servicer shall notify the
Trustee in writing, it being understood
that the Servicer shall not have any
responsibility or liability for any failure
to recover under the Primary
Insurance Policy for such reason. If the
Servicer determines that recoveries
under the Primary Insurance Policy are
jeopardized by the financial condition of
the insurer, the Servicer shall obtain from
another insurer which meets the
requirements of this Section 3.05 a
replacement insurance policy. The Servicer
shall not take any action that would result
in noncoverage under any applicable
Primary Insurance Policy of any loss that,
but for the actions of the Servicer,
would have been covered thereunder. In
connection with any assumption or
substitution agreement entered into or to
be entered into pursuant to Section
3.13, the Servicer shall promptly notify
the insurer under the related Primary
Insurance Policy, if any, of such
assumption or substitution of liability in
accordance with the terms of such Primary
Insurance Policy and shall take all
actions which may be required by such
insurer as a condition to the continuation
of coverage under such Primary Insurance
Policy. If such Primary Insurance
Policy is terminated as a result of such
assumption or substitution of
liability, the Servicer shall obtain a
replacement Primary Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer
agrees
to prepare and present, on behalf of
itself, the Trustee and the
Certificateholders, claims to the insurer
under any Primary Insurance Policy in
a timely fashion in accordance with the
terms of such Primary Insurance Policy
and, in this regard, to take such action as
shall be necessary to permit
recovery under any Primary Insurance Policy
respecting a defaulted Mortgage
Loan. Pursuant to Section 3.09(a), any
amounts collected by the Servicer under
any Primary Insurance Policy shall be
deposited in the related Escrow Account,
subject to withdrawal pursuant to Section
3.09(b).
The Servicer will comply with all provisions of applicable state
and
federal law relating to the cancellation
of, or collection of premiums with
respect to, Primary Mortgage Insurance,
including, but not limited to, the
provisions of the Homeowners Protection Act
of 1998, and all regulations
promulgated thereunder, as amended from
time to time.
(b) The Servicer shall take all actions necessary to collect,
on
behalf of the Trust, any BPP Mortgage Loan
Payments required to be made to the
Trust pursuant to the Mortgage Loan
Purchase Agreement.
Section 3.06 Rights of the Depositor and the Trustee in Respect
of
the Servicer. The Depositor may, but is not
obligated to, enforce the
obligations of the Servicer hereunder and
may, but is not obligated to, perform,
or cause a designee to perform, any
defaulted obligation of the Servicer
hereunder and in connection with any such
defaulted obligation to exercise the
related rights of the Servicer hereunder;
provided that the Servicer shall not
be relieved of any of its obligations
hereunder by virtue of such performance by
the Depositor or its designee. Neither the
Trustee nor the Depositor shall have
any responsibility or liability for any
action or failure to act by the Servicer
nor shall the Trustee or the Depositor be
obligated to supervise the performance
of the Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the
Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to
be between the Subservicer and the
Servicer alone, and the Trustee and
Certificateholders shall not be deemed
parties thereto and shall have no claims,
rights, obligations, duties or
liabilities with respect to the Subservicer
except as set forth in Section 3.07.
The Servicer shall be solely liable for all
fees owed by it to any Subservicer,
irrespective of whether the Servicer's
compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.07 Trustee to Act as Servicer. If the Servicer shall
for
any reason no longer be the Servicer
hereunder (including by reason of an Event
of Default), the Trustee shall within 90
days of such time, assume, if it so
elects, or shall appoint a successor
Servicer to assume, all of the rights and
obligations of the Servicer hereunder
arising thereafter (except that the
Trustee shall not be (a) liable for losses
of the Servicer pursuant to Section
3.12 or any acts or omissions of the
predecessor Servicer hereunder, (b)
obligated to make Advances if it is
prohibited from doing so by applicable law
or (c) deemed to have made any
representations and warranties of the Servicer
hereunder). Any such assumption shall be
subject to Sections 7.02 and 8.05. If
the Servicer shall for any reason no longer
be the Servicer (including by reason
of any Event of Default), the Trustee or
the successor Servicer may elect to
succeed to any rights and obligations of
the Servicer under each Subservicing
Agreement or may terminate each
Subservicing Agreement. If it has elected to
assume the Subservicing Agreement, the
Trustee or the successor Servicer shall
be deemed to have assumed all of the
Servicer's interest therein and to have
replaced the Servicer as a party to any
Subservicing Agreement entered into by
the Servicer as contemplated by Section
3.02 to the same extent as if the
Subservicing Agreement had been assigned to
the assuming party except that the
Servicer shall not be relieved of any
liability or obligations under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall,
upon
request of the Trustee, but at the expense
of such predecessor Servicer, deliver
to the assuming party all documents and
records relating to each Subservicing
Agreement or substitute servicing agreement
and the Mortgage Loans then being
serviced thereunder and an accounting of
amounts collected or held by it and
otherwise use its best efforts to effect
the orderly and efficient transfer of
such substitute Subservicing Agreement to
the assuming party. The Trustee shall
be entitled to be reimbursed from the
predecessor Servicer (or the Trust if the
predecessor Servicer is unable to fulfill
its obligations hereunder) for all
Servicing Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Account; Certificate Account and
Reserve Fund. (a) Continuously from
the date hereof until the principal and
interest on all Mortgage Loans are paid
in full, the Servicer will proceed
diligently, in accordance with this
Agreement, to collect all payments due
under each of the Mortgage Loans it
services when the same shall become due and
payable. Further, the Servicer will
in accordance with all applicable law and
Customary Servicing Procedures
ascertain and estimate taxes, assessments,
fire and hazard insurance premiums,
mortgage insurance premiums and all other
charges with respect to the Mortgage
Loans it services that, as provided in any
Mortgage, will become due and payable
to the end that the installments payable by
the Mortgagors will be sufficient to
pay such charges as and when they become
due and payable. Consistent with the
foregoing, the Servicer may in its
discretion (i) waive any late payment charge
or any prepayment charge or penalty
interest in connection with the prepayment
of a Mortgage Loan it services and (ii)
extend the due dates for payments due on
a Mortgage Note for a period not greater
than 120 days; provided, however, that
the Servicer cannot extend the maturity of
any such Mortgage Loan past the date
on which the final payment is due on the
latest maturing Mortgage Loan as of the
Cut-off Date. In the event of any such
arrangement, the Servicer shall make
Periodic Advances on the related Mortgage
Loan in accordance with the provisions
of Section 3.20 during the scheduled period
in accordance with the amortization
schedule of such Mortgage Loan without
modification thereof by reason of such
arrangements. The Servicer shall not be
required to institute or join in
litigation with respect to collection of
any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any
public or governmental authority with
respect to a taking or condemnation) if it
reasonably believes that enforcing
the provision of the Mortgage or other
instrument pursuant to which such payment
is required is prohibited by applicable
law.
(b) The Servicer shall establish and maintain the Servicer
Custodial
Account. The Servicer shall deposit or
cause to be deposited into the Servicer
Custodial Account, all on a daily basis
within one Business Day of receipt,
except as otherwise specifically provided
herein, the following payments and
collections remitted by Subservicers or
received by the Servicer in respect of
the Mortgage Loans subsequent to the
Cut-off Date (other than in respect of
principal and interest due on the Mortgage
Loans on or before the Cut-off Date)
and the following amounts required to be
deposited hereunder with respect to the
Mortgage Loans it services:
(i) all payments on account of principal of the Mortgage Loans,
including Principal
Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of
the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than
Insurance Proceeds to
be (1) applied to the restoration or repair of the
Mortgaged Property,
(2) released to the Mortgagor in accordance with
Customary Servicing
Procedures or (3) required to be deposited to an Escrow
Account pursuant to
Section 3.09(a), and other than any Excess Proceeds and
(B) any Insurance
Proceeds released from an Escrow Account pursuant to
Section
3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant
to
Section 3.08(d) in
connection with any losses on Permitted Investments with
respect to the
Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant
to
Section 3.14;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts and
all
Reimbursement Amounts,
to the extent received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to Section
3.20
and any Compensating
Interest;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to
Section
3.23; and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer
Custodial
Account by the Servicer shall be exclusive
it being understood and agreed that,
without limiting the generality of the
foregoing, Ancillary Income need not be
deposited by the Servicer. If the Servicer
shall deposit in the Servicer
Custodial Account any amount not required
to be deposited, it may at any time
withdraw or direct the institution
maintaining the Servicer Custodial Account to
withdraw such amount from the Servicer
Custodial Account, any provision herein
to the contrary notwithstanding. The
Servicer Custodial Account may contain
funds that belong to one or more trust
funds created for mortgage pass-through
certificates of other series and may
contain other funds respecting payments on
mortgage loans belonging to the Servicer or
serviced by the Servicer on behalf
of others; provided that such commingling
of funds shall not be permitted at any
time during which Fitch's senior long-term
unsecured debt rating of Bank of
America is below "A." Notwithstanding such
commingling of funds, the Servicer
shall keep records that accurately reflect
the funds on deposit in the Servicer
Custodial Account that have been identified
by it as being attributable to the
Mortgage Loans it services. The Servicer
shall maintain adequate records with
respect to all withdrawals made pursuant to
this Section 3.08. All funds
required to be deposited in the Servicer
Custodial Account shall be held in
trust for the Certificateholders until
withdrawn in accordance with Section
3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate
Account, which shall be deemed to consist of
eight sub-accounts. The Trustee shall,
promptly upon receipt, deposit in the
Certificate Account and retain therein the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant to Section
3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.08(d)
in
connection with any
losses on Permitted Investments with respect to the
Certificate Account;
and
(iii) any other amounts deposited hereunder which are required to
be
deposited in the
Certificate Account.
If the Servicer shall remit any amount not required to be
remitted,
it may at any time direct the Trustee to
withdraw such amount from the
Certificate Account, any provision herein
to the contrary notwithstanding. Such
direction may be accomplished by delivering
an Officer's Certificate to the
Trustee which describes the amounts
deposited in error in the Certificate
Account. All funds required to be deposited
in the Certificate Account shall be
held by the Trustee in trust for the
Certificateholders until disbursed in
accordance with this Agreement or withdrawn
in accordance with Section 3.11. In
no event shall the Trustee incur liability
for withdrawals from the Certificate
Account at the direction of the
Servicer.
(d) Each institution at which the Servicer Custodial Account or
the
Certificate Account is maintained shall
invest the funds therein as directed in
writing by the Servicer, in the case of the
Servicer Custodial Account, or the
Trustee, in the case of the Certificate
Account, in Permitted Investments, which
shall mature not later than (i) in the case
of the Servicer Custodial Account,
the Business Day next preceding the related
Remittance Date (except that if such
Permitted Investment is an obligation of
the institution that maintains such
account, then such Permitted Investment
shall mature not later than such
Remittance Date) and (ii) in the case of
the Certificate Account, the Business
Day next preceding the Distribution Date
(except that if such Permitted
Investment is an obligation of the
institution that maintains such account, then
such Permitted Investment shall mature not
later than such Distribution Date)
and, in each case, shall not be sold or
disposed of prior to its maturity. All
such Permitted Investments shall be made in
the name of the Trustee, for the
benefit of the Certificateholders. All
Servicer Custodial Account Reinvestment
Income shall be for the benefit of the
Servicer as part of its Servicing
Compensation and shall be retained by it
monthly as provided herein. All income
or gain (net of any losses) realized from
any such investment of funds on
deposit in the Certificate Account shall be
for the benefit of the Trustee as
additional compensation and shall be
retained by it monthly as provided herein.
The amount of any losses realized in the
Servicer Custodial Account or the
Certificate Account incurred in any such
account in respect of any such
investments shall promptly be deposited by
the Servicer in the Servicer
Custodial Account or by the Trustee in the
Certificate Account, as applicable.
(e) The Servicer shall give notice to the Trustee of any
proposed
change of the location of the Servicer
Custodial Account maintained by the
Servicer not later than 30 days and not
more than 45 days prior to any change
thereof. The Trustee shall give notice to
the Servicer, each Rating Agency and
the Depositor of any proposed change of the
location of the Certificate Account
not later than 30 days after and not more
than 45 days prior to any change
thereof. The creation of the Servicer
Custodial Account shall be evidenced by a
certification substantially in the form of
Exhibit F hereto. A copy of such
certification shall be furnished to the
Trustee.
(f) The Trustee shall designate each of the Middle-Tier
Certificate
Sub-Account and the Upper-Tier Certificate
Sub-Account as a sub-account of the
Certificate Account. On each Distribution
Date (other than the Final
Distribution Date, if such Final
Distribution Date is in connection with a
purchase of the assets of the Trust Estate
by the Depositor), the Trustee shall,
from funds available on deposit in the
Certificate Account, be deemed to deposit
into the Middle-Tier Certificate
Sub-Account, the Lower-Tier Distribution
Amount. The Trustee shall then immediately,
from funds available in the
Middle-Tier Certificate Sub-Account, be
deemed to deposit into the Upper-Tier
Certificate Sub-Account, the Middle-Tier
Distribution Amount.
(g) (i) The Trustee shall establish and maintain the Class
1-CB-1
Reserve Fund and the Class 4-A-1 Reserve
Fund, held in trust for the benefit of
the Holders of the Class 1-CB-1 and Class
4-A-1 Certificates, respectively, and
Banc of America Securities LLC. The Trustee
shall deposit in the applicable
Reserve Fund on the date received by it,
the related Yield Maintenance Agreement
Payment, if any, received from the
Counterparty for the related Distribution
Date. Funds on deposit in the Reserve Funds
shall remain uninvested. On each
Distribution Date, the Trustee shall
withdraw from the applicable Reserve Fund
the related Yield Maintenance Agreement
Payment, if any, received in respect of
such Distribution Date and any Excess Funds
in such Reserve Fund and shall
distribute such amounts to the Class 1-CB-1
or Class 4-A-1 Certificates, as the
case may be, in an amount up to the sum of
the applicable Yield Maintenance
Amount for such Distribution Date and any
applicable Yield Maintenance Amount
Shortfalls for prior Distribution Dates.
Any amounts remaining in the Class
1-CB-1 Reserve Fund or the Class 4-A-1
Reserve Fund on the date on which the
Class Certificate Balance of the Class
1-CB-1 Certificates or Class 4-A-1
Certificates is reduced to zero (after
payment of the related Yield Maintenance
Amount for such date and the amount of any
related Yield Maintenance Amount
Shortfalls from previous Distribution Dates
not yet paid) shall be distributed
by the Trustee to Banc of America
Securities LLC.
(ii) The Trustee shall account for the Reserve Funds and the
Yield
Maintenance Agreements
and the rights with respect thereto as assets of the
Grantor Trust and not
as assets of any REMIC created pursuant to this
Agreement. The
beneficial owner of the Yield Maintenance Agreements and the
Reserve Funds is Banc
of America Securities LLC.
(iii) Any amounts in the applicable Reserve Fund paid by the
Trustee
pursuant to this
Section 3.08(g) to the Class 1-CB-1 or Class 4-A-1
Certificates shall be
accounted for by the Trustee as amounts paid to the
Class 1-CB-1 or Class
4-A-1 Certificates, respectively, from the Grantor
Trust. In addition,
the Trustee shall account for the rights of the Class
1-CB-1 and Class 4-A-1
Certificates to receive amounts from the applicable
Reserve Fund as rights
in limited recourse interest rate cap contracts
written by Banc of
America Securities LLC in favor of the Class 1-CB-1 and
Class 4-A-1
Certificates.
(h) For federal tax return and information reporting purposes,
the
right of the Holders of the Class 1-CB-1
and Class 4-A-1 Certificates to receive
payments under the applicable Yield
Maintenance Agreement shall be assigned a
value of zero as of the Closing Date.
Section 3.09 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts. (a) To the extent required
by the related Mortgage Note and not
violative of current law, the Servicer
shall segregate and hold all funds
collected and received pursuant to each
Mortgage Loan which constitute Escrow
Payments in trust separate and apart from
any of its own funds and general
assets and for such purpose shall establish
and maintain one or more escrow
accounts (collectively, the "Escrow
Account"), titled "Bank of America, N.A., in
trust for registered holders of Banc of
America Alternative Loan Trust 2005-11
Mortgage Pass-Through Certificates, Series
2005-11 and various Mortgagors." The
Escrow Account shall be established with a
commercial bank, a savings bank or a
savings and loan association that meets the
guidelines set forth by FNMA or
FHLMC as an eligible institution for escrow
accounts and which is a member of
the Automated Clearing House. In any case,
the Escrow Account shall be insured
by the FDIC to the fullest extent permitted
by law. The Servicer shall deposit
in the appropriate Escrow Account on a
daily basis, and retain therein: (i) all
Escrow Payments collected on account of the
Mortgage Loans, (ii) all amounts
representing proceeds of any hazard
insurance policy which are to be applied to
the restoration or repair of any related
Mortgaged Property and (iii) all
amounts representing proceeds of any
Primary Insurance Policy. Nothing herein
shall require the Servicer to compel a
Mortgagor to establish an Escrow Account
in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts
may
be made by the Servicer only (i) to effect
timely payment of taxes, assessments,
mortgage insurance premiums, fire and
hazard insurance premiums, condominium or
PUD association dues, or comparable items
constituting Escrow Payments for the
related Mortgage, (ii) to reimburse the
Servicer out of related Escrow Payments
made with respect to a Mortgage Loan for
any Servicing Advance made by the
Servicer pursuant to Section 3.09(c) with
respect to such Mortgage Loan, (iii)
to refund to any Mortgagor any sums
determined to be overages, (iv) for transfer
to the Servicer Custodial Account upon
default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan
and if permitted by applicable law,
(v) for application to restore or repair
the Mortgaged Property, (vi) to pay to
the Mortgagor, to the extent required by
law, any interest paid on the funds
deposited in the Escrow Account, (vii) to
pay to itself any interest earned on
funds deposited in the Escrow Account (and
not required to be paid to the
Mortgagor), (viii) to the extent permitted
under the terms of the related
Mortgage Note and applicable law, to pay
late fees with respect to any Monthly
Payment which is received after the
applicable grace period, (ix) to withdraw
suspense payments that are deposited into
the Escrow Account, (x) to withdraw
any amounts inadvertently deposited in the
Escrow Account or (xi) to clear and
terminate the Escrow Account upon the
termination of this Agreement in
accordance with Section 10.01. Any Escrow
Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall
maintain
accurate records reflecting the status of
taxes, assessments and other charges
which are or may become a lien upon the
Mortgaged Property and the status of
Primary Insurance Policy premiums and fire
and hazard insurance coverage. The
Servicer shall obtain, from time to time,
all bills for the payment of such
charges (including renewal premiums) and
shall effect payment thereof prior to
the applicable penalty or termination date
and at a time appropriate for
securing maximum discounts allowable,
employing for such purpose deposits of the
Mortgagor in the Escrow Account, if any,
which shall have been estimated and
accumulated by the Servicer in amounts
sufficient for such purposes, as allowed
under the terms of the Mortgage. To the
extent that a Mortgage does not provide
for Escrow Payments, the Servicer shall
determine that any such payments are
made by the Mortgagor. The Servicer assumes
full responsibility for the timely
payment of all such bills and shall effect
timely payments of all such bills
irrespective of each Mortgagor's faithful
performance in the payment of same or
the making of the Escrow Payments. The
Servicer shall advance any such payments
that are not timely paid, but the Servicer
shall be required so to advance only
to the extent that such Servicing Advances,
in the good faith judgment of the
Servicer, will be recoverable by the
Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer
shall afford the Trustee reasonable
access to all records and documentation
regarding the Mortgage Loans and all
accounts, insurance information and other
matters relating to this Agreement,
such access being afforded without charge,
but only upon reasonable request and
during normal business hours at the office
designated by the Servicer.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Account and Certificate Account. (a) The
Servicer may from time to time make
withdrawals from the Servicer Custodial
Account, for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained),
the
Servicing Compensation
to which it is entitled pursuant to Section 3.17;
(ii) to reimburse the Servicer for unreimbursed Advances made by
it,
such right of
reimbursement pursuant to this clause (ii) being limited to
amounts received on
the Mortgage Loan(s) (including amounts received in
respect of BPP
Mortgage Loan Payments for such Mortgage Loan) in respect of
which any such Advance
was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made, such
right of reimbursement pursuant to this clause (iii)
being limited to
amounts received on the Mortgage Loans in the same Loan
Group as the Mortgage
Loan(s) in respect of which such Nonrecoverable
Advance was made;
(iv) to reimburse the Servicer for Insured Expenses from the
related
Insurance
Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
REO
Property that has been
purchased pursuant to Section 2.02 or 2.04, all
amounts received
thereon after the date of such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses
incurred by
any of them and
reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer Custodial
Account
and not required to be
deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal
to the related Pool
Distribution Amount for such Distribution Date, to the
extent on deposit, and
remit such amount in immediately available funds to
the Trustee for
deposit in the Certificate Account; and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this
Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for
the purpose of justifying any
withdrawal from the Servicer Custodial
Account pursuant to clauses (i), (ii),
(iv) and (v). The Servicer shall keep and
maintain such separate accounting for
each Loan Group. Prior to making any
withdrawal from the Servicer Custodial
Account pursuant to clause (iii), the
Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing
Officer indicating the amount of any
previous Advance determined by the Servicer
to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s)
and their respective portions of such
Nonrecoverable Advance.
(b) The Trustee shall be deemed to withdraw funds from the
applicable Certificate Account sub-accounts
for distributions to
Certificateholders in the manner specified
in this Agreement. In addition, the
Trustee may from time to time make
withdrawals from the Certificate Account for
the following purposes:
(i) to pay to itself the Trustee Fee;
(ii) to pay to itself as additional compensation earnings on or
investment income with
respect to funds in the Certificate Account and any
other amounts due to
the Trustee (other than the Trustee Fee) under this
Agreement for the
related Distribution Date;
(iii) to withdraw and return to the Servicer any amount deposited
in the
Certificate Account
and not required to be deposited therein; and
(iv) to clear and terminate the Certificate Account upon
termination of
this Agreement
pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be on deposit in the
Upper-Tier Certificate Sub-Account
shall be used to make payments on the
Regular Certificates, the Class CB-IO
Certificates, the Class CB-PO Certificates
and the Class 1-CB-R Certificate (in
respect of the R-U Interest) as provided in
Sections 5.01 and 5.02. The
Certificate Account shall be cleared and
terminated upon termination of this
Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance. The Servicer
shall
cause to be maintained for each Mortgage
Loan, fire and hazard insurance with
extended coverage customary in the area
where the Mortgaged Property is located
in an amount which is at least equal to the
lesser of (a) the full insurable
value of the Mortgaged Property or (b) the
greater of (i) the outstanding
principal balance owing on the Mortgage
Loan and (ii) an amount such that the
proceeds of such insurance shall be
sufficient to avoid the application to the
Mortgagor or loss payee of any coinsurance
clause under the policy. If the
Mortgaged Property is in an area identified
in the Federal Register by the
Federal Emergency Management Agency as
having special flood hazards (and such
flood insurance has been made available)
the Servicer will cause to be
maintained a flood insurance policy meeting
the requirements of the current
guidelines of the Federal Insurance
Administration and the requirements of FNMA
or FHLMC. The Servicer shall also maintain
on REO Property, fire and hazard
insurance with extended coverage in an
amount which is at least equal to the
maximum insurable value of the improvements
which are a part of such property,
liability insurance and, to the extent
required, flood insurance in an amount
required above. Any amounts collected by
the Servicer under any such policies
(other than amounts to be deposited in an
Escrow Account and applied to the
restoration or repair of the property
subject to the related Mortgage or
property acquired in liquidation of the
Mortgage Loan, or to be released to the
Mortgagor in accordance with Customary
Servicing Procedures) shall be deposited
in the Servicer Custodial Account, subject
to withdrawal pursuant to Section
3.11(a). It is understood and agreed that
no earthquake or other additional
insurance need be required by the Servicer
of any Mortgagor or maintained on REO
Property, other than pursuant to such
applicable laws and regulations as shall
at any time be in force and as shall
require such additional insurance. All
policies required hereunder shall be
endorsed with standard mortgagee clauses
with loss payable to the Servicer, and
shall provide for at least 30 days' prior
written notice of any cancellation,
reduction in amount or material change in
coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by
a
unit in a condominium development or
planned unit development shall be
maintained with respect to such Mortgage
Loan and the related development in a
manner which is consistent with FNMA
requirements.
Notwithstanding the foregoing, the Servicer may maintain a
blanket
policy insuring against hazard losses on
all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of
maintaining the required hazard
insurance policies for each Mortgage Loan
and may maintain a blanket policy
insuring against special flood hazards in
lieu of maintaining any required flood
insurance. Any such blanket policies shall
(A) be consistent with prudent
industry standards, (B) name the Servicer
as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid
principal balance on the related
Mortgage Loans without co-insurance, and
(D) otherwise comply with the
requirements of this Section 3.12. Any such
blanket policy may contain a
deductible clause; provided that if any
Mortgaged Property is not covered by a
separate policy otherwise complying with
this Section 3.12 and a loss occurs
with respect to such Mortgaged Property
which loss would have been covered by
such a policy, the Servicer shall deposit
in the Servicer Custodial Account the
difference, if any, between the amount that
would have been payable under a
separate policy complying with this Section
3.12 and the amount paid under such
blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. (a) Except as otherwise
provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage
has been conveyed by the Mortgagor, the
Servicer shall use reasonable efforts, to
the extent that it has actual
knowledge of such conveyance, to enforce
any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent
permitted under applicable law and
governmental regulations, but only to the
extent that such enforcement will not
adversely affect or jeopardize coverage
under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer
is not required to exercise such
rights with respect to a Mortgage Loan if
the Person to whom the related
Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the
terms and conditions contained in the
Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such
Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note
or Mortgage as a condition to such
transfer. If (i) the Servicer is prohibited
by law from enforcing any such
due-on-sale clause, (ii) coverage under any
Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note
does not include a due-on-sale
clause or (iv) nonenforcement is otherwise
permitted hereunder, the Servicer is
authorized, subject to Section 3.13(b), to
take or enter into an assumption and
modification agreement from or with the
Person to whom such Mortgaged Property
has been or is about to be conveyed,
pursuant to which such Person becomes
liable under the Mortgage Note and, unless
prohibited by applicable state law,
the Mortgagor remains liable thereon;
provided that the Mortgage Loan shall
continue to be covered (if so covered
before the Servicer enters such agreement)
by the applicable Required Insurance
Policies. The Servicer, subject to Section
3.13(b), is also authorized with the prior
approval of the insurers under any
Required Insurance Policies to enter into a
substitution of liability agreement
with such Person, pursuant to which the
original Mortgagor is released from
liability and such Person is substituted as
Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be
deemed to be in default under this Section
3.13 by reason of any transfer or
assumption which the Servicer reasonably
believes it is restricted by law from
preventing, for any reason whatsoever.
(b)
Subject to the Servicer's duty to enforce any due-on-sale
clause
to the extent set forth in Section 3.13(a),
in any case in which a Mortgaged
Property has been conveyed to a Person by a
Mortgagor, and such Person is to
enter into an assumption agreement or
modification agreement or supplement to
the Mortgage Note or Mortgage or if an
instrument of release is required
releasing the Mortgagor from liability on
the Mortgage Loan, the Servicer shall
prepare and execute the assumption
agreement with the Person to whom the
Mortgaged Property is to be conveyed and
such modification agreement or
supplement to the Mortgage Note or Mortgage
or other instruments as are
reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable
laws regarding assumptions or the
transfer of the Mortgaged Property to such
Person. In connection with any such
assumption, no material term of the
Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged
Property must be acceptable to the
Servicer in accordance with its
underwriting standards as then in effect.
Together with each such substitution,
assumption or other agreement or
instrument, the Servicer shall execute an
Officer's Certificate signed by a
Servicing Officer stating that the
requirements of this subsection have been
met. The Servicer shall notify the Trustee
that any such substitution or
assumption agreement has been completed by
forwarding to the Trustee (or at the
direction of the Trustee, the Custodian)
the Officer's Certificate described in
the previous sentence and the original of
such substitution or assumption
agreement, which in the case of the
original shall be added to the related
Mortgage File and shall, for all purposes,
be considered a part of such Mortgage
File to the same extent as all other
documents and instruments constituting a
part thereof. Any fee collected by the
Servicer for entering into an assumption
or substitution of liability agreement may
be retained by the Servicer as
additional Servicing Compensation.
Section 3.14 Realization upon Defaulted Mortgage Loans; REO
Property. Subject to Section 3.21, the
Servicer shall use reasonable efforts to
foreclose upon or otherwise comparably
convert the ownership of Mortgaged
Properties securing such of the Mortgage
Loans as come into and continue in
default and as to which no satisfactory
arrangements can be made for collection
of delinquent payments. In connection with
such foreclosure or other conversion,
the Servicer shall follow Customary
Servicing Procedures and shall meet the
requirements of the insurer under any
Required Insurance Policy; provided,
however, that the Servicer may enter into a
special servicing agreement with an
unaffiliated Holder of 100% Percentage
Interest of a Class of Class B
Certificates or a holder of a class of
securities representing interests in the
Class B Certificates alone or together with
other subordinated mortgage
pass-through certificates. Such agreement
shall be substantially in the form
attached hereto as Exhibit K or subject to
each Rating Agency's acknowledgment
that the ratings of the Certificates in
effect immediately prior to the entering
into such agreement would not be qualified,
downgraded or withdrawn and the
Certificates would not be placed on credit
review status (except for possible
upgrading) as a result of such agreement.
Any such agreement may contain
provisions whereby such holder may instruct
the Servicer to commence or delay
foreclosure proceedings with respect to
delinquent Mortgage Loans and will
contain provisions for the deposit of cash
by the holder that would be available
for distribution to Certificateholders if
Liquidation Proceeds are less than
they otherwise may have been had the
Servicer acted in accordance with its
normal procedures. Notwithstanding the
foregoing, the Servicer shall not be
required to expend its own funds in
connection with any foreclosure or towards
the restoration of any Mortgaged Property
unless it shall determine (i) that
such restoration and/or foreclosure will
increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to
itself of such expenses and (ii) that
such expenses will be recoverable to it
through proceeds of the liquidation of
the Mortgage Loan (respecting which it
shall have priority for purposes of
withdrawals from the Servicer Custodial
Account). Any such expenditures shall
constitute Servicing Advances for purposes
of this Agreement.
With respect to any REO Property, the deed or certificate of
sale
shall be taken in the name of the Trustee
for the benefit of the
Certificateholders, or its nominee, on
behalf of the Certificateholders. The
Trustee's name shall be placed on the title
to such REO Property solely as the
Trustee hereunder and not in its individual
capacity. The Servicer shall ensure
that the title to such REO Property
references this Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts
to sell such REO Property, the
Servicer shall either itself or through an
agent selected by the Servicer
manage, conserve, protect and operate such
REO Property in the same manner that
it manages, conserves, protects and
operates other foreclosed property for its
own account and in the same manner that
similar property in the same locality as
the REO Property is managed. Incident to
its conservation and protection of the
interests of the Certificateholders, the
Servicer may rent the same, or any part
thereof, as the Servicer deems to be in the
best interest of the
Certificateholders for the period prior to
the sale of such REO Property. The
Servicer shall prepare for and deliver to
the Trustee a statement with respect
to each REO Property that has been rented,
if any, showing the aggregate rental
income received and all expenses incurred
in connection with the management and
maintenance of such REO Property at such
times as is necessary to enable the
Trustee to comply with the reporting
requirements of the REMIC Provisions;
provided, however, that the Servicer shall
have no duty to rent any REO Property
on behalf of the Trust. The net monthly
rental income, if any, from such REO
Property shall be deposited in the Servicer
Custodial Account no later than the
close of business on each Determination
Date. The Servicer shall perform, with
respect to the Mortgage Loans, the tax
reporting and withholding required by
Sections 1445 and 6050J of the Code with
respect to foreclosures and
abandonments, the tax reporting required by
Section 6050H of the Code with
respect to the receipt of mortgage interest
from individuals and, if required by
Section 6050P of the Code with respect to
the cancellation of indebtedness by
certain financial entities, by preparing
such tax and information returns as may
be required, in the form required.
If the Trust acquires any Mortgaged Property as described above
or
otherwise in connection with a default or a
default which is reasonably
foreseeable on a Mortgage Loan, the
Servicer shall dispose of such Mortgaged
Property prior to the end of the third
calendar year following the year of its
acquisition by the Trust (such period, the
"REO Disposition Period") unless (A)
the Trustee shall have been supplied by the
Servicer with an Opinion of Counsel
to the effect that the holding by the Trust
of such Mortgaged Property
subsequent to the REO Disposition Period
will not result in the imposition of
taxes on "prohibited transactions" (as
defined in Section 860F of the Code) on
any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC or
cause any REMIC created hereunder to fail
to qualify as a REMIC at any time that
any Certificates are outstanding, or (B)
the Trustee (at the Servicer's expense)
or the Servicer shall have applied for,
prior to the expiration of the REO
Disposition Period, an extension of the REO
Disposition Period in the manner
contemplated by Section 856(e)(3) of the
Code. If such an Opinion of Counsel is
provided or such an exemption is obtained,
the Trust may continue to hold such
Mortgaged Property (subject to any
conditions contained in such Opinion of
Counsel) for the applicable period.
Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired
by the Trust shall be rented (or
allowed to continue to be rented) or
otherwise used for the production of income
by or on behalf of the Trust in such a
manner or pursuant to any terms that
would (i) cause such Mortgaged Property to
fail to qualify as "foreclosure
property" within the meaning of Section
860G(a)(8) of the Code or (ii) subject
any REMIC created hereunder to the
imposition of any federal, state or local
income taxes on the income earned from such
Mortgaged Property under Section
860G(c) of the Code or otherwise, unless
the Servicer has agreed to indemnify
and hold harmless the Trust with respect to
the imposition of any such taxes.
The Servicer shall identify to the Trustee
any Mortgaged Property relating to a
Mortgage Loan held by the Trust for 30
months for which no plans to dispose of
such Mortgaged Property by the Servicer
have been made. After delivery of such
identification, the Servicer shall proceed
to dispose of any such Mortgaged
Property by holding a commercially
reasonable auction for such property.
The income earned from the management of any REO Properties, net
of
reimbursement to the Servicer for expenses
incurred (including any property or
other taxes) in connection with such
management and net of unreimbursed
Servicing Fees, Periodic Advances and
Servicing Advances, shall be applied to
the payment of principal of and interest on
the related defaulted Mortgage Loans
(solely for the purposes of allocating
principal and interest, interest shall be
treated as accruing as though such Mortgage
Loans were still current) and all
such income shall be deemed, for all
purposes in this Agreement, to be payments
on account of principal and interest on the
related Mortgage Notes and shall be
deposited into the Servicer Custodial
Account. To the extent the net income
received during any calendar month is in
excess of the amount attributable to
amortizing principal and accrued interest
at the related Mortgage Interest Rate
on the related Mortgage Loan for such
calendar month, such excess shall be
considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as
any
income from an REO Property, will be
applied in the following order of priority:
first, to reimburse the Servicer for any
related unreimbursed Servicing Advances
and Servicing Fees; second, to reimburse
the Servicer for any unreimbursed
Periodic Advances and to reimburse the
Servicer Custodial Account for any
Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by
the Servicer pursuant to Section
3.11(a)(iii) that related to such Mortgage
Loan; third, to accrued and unpaid interest
(to the extent no Periodic Advance
has been made for such amount or any such
Periodic Advance has been reimbursed)
on the Mortgage Loan or related REO
Property, at the Mortgage Interest Rate to
the Due Date occurring in the month in
which such amounts are required to be
distributed; and fourth, as a recovery of
principal of the Mortgage Loan. Excess
Proceeds, if any, from the liquidation of a
Liquidated Mortgage Loan will be
retained by the Servicer as additional
Servicing Compensation pursuant to
Section 3.17.
Section 3.15 Trustee to Cooperate; Release of Mortgage Files.
Upon
the payment in full of any Mortgage Loan,
or the receipt by the Servicer of a
notification that payment in full will be
escrowed in a manner customary for
such purposes, the Servicer will
immediately notify the Trustee (or, at the
direction of the Trustee, the Custodian) by
delivering, or causing to be
delivered, two copies (one of which will be
returned to the Servicer with the
Mortgage File) of a Request for Release
(which may be delivered in an electronic
format acceptable to the Trustee and the
Servicer). Upon receipt of such
request, the Trustee or the Custodian, as
applicable, shall within seven
Business Days release the related Mortgage
File to the Servicer. The Trustee
shall deliver to the Servicer the Mortgage
Note with written evidence of
cancellation thereon. If the Mortgage has
been recorded in the name of MERS or
its designee, the Servicer shall take all
necessary action to reflect the
release of the Mortgage on the records of
MERS. Expenses incurred in connection
with any instrument of satisfaction or deed
of reconveyance shall be chargeable
to the related Mortgagor. From time to time
and as shall be appropriate for the
servicing or foreclosure of any Mortgage
Loan, including for such purpose
collection under any policy of flood
insurance, any fidelity bond or errors or
omissions policy, or for the purposes of
effecting a partial release of any
Mortgaged Property from the lien of the
Mortgage or the making of any
corrections to the Mortgage Note or the
Mortgage or any of the other documents
included in the Mortgage File, the Trustee
or the Custodian, as applicable,
shall, upon delivery to the Trustee (or, at
the direction of the Trustee, the
Custodian) of a Request for Release signed
by a Servicing Officer, release the
Mortgage File within seven Business Days to
the Servicer. Subject to the further
limitations set forth below, the Servicer
shall cause the Mortgage File so
released to be returned to the Trustee or
the Custodian, as applicable, when the
need therefor by the Servicer no longer
exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are
deposited in the Servicer Custodial
Account, in which case the Servicer shall
deliver to the Trustee or the
Custodian, as applicable, a Request for
Release, signed by a Servicing Officer.
Upon prepayment in full of any Mortgage Loan or the receipt of
notice that funds for such purpose have
been placed in escrow, the Servicer
shall give an instrument of satisfaction
(or Assignment of Mortgage without
recourse) regarding the Mortgaged Property
relating to such Mortgage Loan, which
instrument of satisfaction or Assignment of
Mortgage, as the case may be, shall
be delivered to the Person entitled thereto
against receipt of the prepayment in
full. If the Mortgage is registered in the
name of MERS or its designee, the
Servicer shall take all necessary action to
reflect the release on the records
of MERS. In lieu of executing such
satisfaction or Assignment of Mortgage, or if
another document is required to be executed
by the Trustee, the Servicer may
deliver or cause to be delivered to the
Trustee, for signature, as appropriate,
any court pleadings, requests for trustee's
sale or other documents necessary to
effectuate such foreclosure or any legal
action brought to obtain judgment
against the Mortgagor on the Mortgage Note
or the Mortgage or to obtain a
deficiency judgment or to enforce any other
remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise
available at law or in equity.
Section 3.16 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The
Servicer shall transmit to the Trustee
or, at the direction of the Trustee, the
Custodian as required by this Agreement
all documents and instruments in respect of
a Mortgage Loan coming into the
possession of the Servicer from time to
time and shall account fully to the
Trustee for any funds received by the
Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds or
Insurance Proceeds in respect of any
Mortgage Loan. The documents constituting
the Servicing File shall be held by
the Servicer as custodian and bailee for
the Trustee. All Mortgage Files and
funds collected or held by, or under the
control of, the Servicer in respect of
any Mortgage Loans, whether from the
collection of principal and interest
payments or from Liquidation Proceeds,
including but not limited to, any funds
on deposit in the Servicer Custodial
Account, shall be held by the Servicer for
and on behalf of the Trustee and shall be
and remain the sole and exclusive
property of the Trustee, subject to the
applicable provisions of this Agreement.
The Servicer also agrees that it shall not
knowingly create, incur or subject
any Mortgage File or any funds that are
deposited in the Servicer Custodial
Account, Certificate Account or any Escrow
Account, or any funds that otherwise
are or may become due or payable to the
Trustee for the benefit of the
Certificateholders, to any claim, lien,
security interest, judgment, levy, writ
of attachment or other encumbrance created
by the Servicer, or assert by legal
action or otherwise any claim or right of
setoff against any Mortgage File or
any funds collected on, or in connection
with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set
off against and deduct from any such
funds any amounts that are properly due and
payable to the Servicer under this
Agreement.
Section 3.17 Servicing Compensation. The Servicer shall be
entitled
out of each payment of interest on a
Mortgage Loan (or portion thereof) and
included in the Trust Estate to retain or
withdraw from the Servicer Custodial
Account an amount equal to the Servicing
Fee for such Distribution Date;
provided, however, that the aggregate
Servicing Fee for the Servicer shall be
reduced (but not below zero) by an amount
equal to the Compensating Interest.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be
deposited in the Servicer Custodial
Account pursuant to Section 3.08(b). The
Servicer shall be required to pay all
expenses incurred by it in connection with
its servicing activities hereunder
and shall not be entitled to reimbursement
therefor except as specifically
provided in this Agreement.
Section 3.18 Annual Statement as to Compliance. Commencing in
the
calendar year following the date of this
Agreement, the Servicer shall deliver
to the Trustee and each Rating Agency on or
before the 10th day (or if not a
Business Day, the immediately preceding
Business Day) preceding the latest day
in each year on which an annual report on
Form 10-K may be timely filed with the
Securities and Exchange Commission (without
regard to any extension), an
Officer's Certificate stating, as to the
signer thereof, that (a) a review of
the activities of the Servicer during the
preceding calendar year and of the
performance of the Servicer under this
Agreement has been made under such
officer's supervision, and (b) to the best
of such officer's knowledge, based on
such review, the Servicer has fulfilled all
its obligations under this Agreement
throughout such year, or, if there has been
a default in the fulfillment of any
such obligation, specifying each such
default known to such officer and the
nature and status thereof.
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Commencing
in the calendar year following the
date of this Agreement, the Servicer shall,
at its own expense, on or before the
10th day (or if not a Business Day, the
immediately preceding Business Day)
preceding the latest day in each year on
which an annual report on Form 10-K may
be timely filed with the Securities and
Exchange Commission (without regard to
any extension), cause a firm of independent
public accountants (who may also
render other services to the Servicer or
any affiliate thereof) which is a
member of the American Institute of
Certified Public Accountants to furnish (i)
a statement to the Trustee to the effect
that such firm has, with respect to the
Servicer's overall servicing operations,
examined such operations in accordance
with the requirements of the Uniform Single
Attestation Program for Mortgage
Bankers, stating such firm's conclusions
relating thereto or (ii) commencing
with calendar year 2007, a report in
accordance with Rule 1-02(a)(3) and Rule
2-02(g) of Regulation S-X under the 1933
Act and the Exchange Act that attests
to, and reports on an assessment made by
the Servicer of its compliance with the
servicing criteria set forth in Item
1122(d) of Regulation AB, as required by
Rules 13a-18 and 15d-18 under the Exchange
Act, and Item 1122(b) of Regulation
AB.
Section 3.20 Advances. The Servicer shall determine on or
before
each Servicer Advance Date whether it is
required to make a Periodic Advance
pursuant to the definition thereof. If the
Servicer determines it is required to
make a Periodic Advance, it shall, on or
before the Servicer Advance Date,
either (a) deposit into the Servicer
Custodial Account an amount equal to the
Advance and/or (b) make an appropriate
entry in its records relating to the
Servicer Custodial Account that any portion
of the Amount Held for Future
Distribution with respect to a Loan Group
in the Servicer Custodial Account has
been used by the Servicer in discharge of
its obligation to make any such
Periodic Advance on a Mortgage Loan in such
Loan Group. Any funds so applied
shall be replaced by the Servicer by
deposit in the Servicer Custodial Account
no later than the close of business on the
Business Day preceding the next
Servicer Advance Date. The Servicer shall
be entitled to be reimbursed from the
Servicer Custodial Account for all Advances
of its own funds made pursuant to
this Section 3.20 as provided in Section
3.11(a). The obligation to make
Periodic Advances with respect to any
Mortgage Loan shall continue until the
ultimate disposition of the REO Property or
Mortgaged Property relating to such
Mortgage Loan. The Servicer shall inform
the Trustee of the amount of the
Periodic Advance to be made by the Servicer
with respect to each Loan Group on
each Servicer Advance Date no later than
the related Remittance Date.
The Servicer shall deliver to the Trustee on the related
Servicer
Advance Date an Officer's Certificate of a
Servicing Officer indicating the
amount of any proposed Periodic Advance
determined by the Servicer to be a
Nonrecoverable Advance. Notwithstanding
anything to the contrary, the Servicer
shall not be required to make any Periodic
Advance or Servicing Advance that
would be a Nonrecoverable Advance.
Section 3.21 Modifications, Waivers, Amendments and Consents.
(a)
Subject to this Section 3.21, the Servicer
may agree to any modification,
waiver, forbearance, or amendment of any
term of any Mortgage Loan without the
consent of the Trustee or any
Certificateholder. All modifications, waivers,
forbearances or amendments of any Mortgage
Loan shall be in writing and shall be
consistent with Customary Servicing
Procedures.
(b) The Servicer shall not agree to enter into, and shall not
enter
into, any modification, waiver (other than
a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by
Section 3.13), forbearance or
amendment of any term of any Mortgage Loan
if such modification, waiver,
forbearance, or amendment would:
(i) forgive principal owing under such Mortgage Loan or
permanently
reduce the interest
rate on such Mortgage Loan;
(ii) affect the amount or timing of any related payment of
principal,
interest or other
amount payable thereunder;
(iii) in the Servicer's judgment, materially impair the security
for
such Mortgage Loan or
reduce the likelihood of timely payment of amounts due
thereon; or
(iv) otherwise constitute a "significant modification" within
the
meaning of Treasury
Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) through
(iv) above, (A) such Mortgage Loan
is 90 days or more past due or (B) the
Servicer delivers to the Trustee an
Opinion of Counsel to the effect that such
modification, waiver, forbearance or
amendment would not affect the REMIC status
of any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC.
Notwithstanding the foregoing, no
Opinion of Counsel need be delivered if the
purpose of the modification is to
reduce the Monthly Payment on a Mortgage
Loan as a result of a partial Principal
Prepayment; provided that the Mortgage Loan
is fully amortized by its original
maturity date. Subject to Customary
Servicing Procedures, the Servicer may
permit a forbearance for a Mortgage Loan
which in the Servicer's judgment is
subject to imminent default.
(c) The Servicer may, as a condition to granting any request by
a
Mortgagor for consent, modification,
waiver, forbearance or amendment, the
granting of which is within the Servicer's
discretion pursuant to the Mortgage
Loan and is permitted by the terms of this
Agreement, require that such
Mortgagor pay to the Servicer, as
additional Servicing Compensation, a
reasonable or customary fee for the
additional services performed in connection
with such request, together with any
related costs and expenses incurred by the
Servicer, which amount shall be retained by
the Servicer as additional Servicing
Compensation.
(d) The Servicer shall notify the Trustee, in writing, of any
modification, waiver, forbearance or
amendment of any term of any Mortgage Loan
and the date thereof, and shall deliver to
the Trustee (or, at the direction of
the Trustee, the Custodian) for deposit in
the related Mortgage File, an
original counterpart of the agreement
relating to such modification, waiver,
forbearance or amendment, promptly (and in
any event within ten Business Days)
following the execution thereof; provided,
however, that if any such
modification, waiver, forbearance or
amendment is required by applicable law to
be recorded, the Servicer (i) shall deliver
to the Trustee a copy thereof and
(ii) shall deliver to the Trustee such
document, with evidence of notification
upon receipt thereof from the public
recording office.
Section
3.22 Reports to the Securities and Exchange Commission. (a)
The Trustee and the Servicer shall
reasonably cooperate with the Depositor in
connection with the Trust's satisfying its
reporting requirements under the
Exchange Act. Without limiting the
generality of the foregoing, the Trustee
shall prepare on behalf of the Trust any
monthly Current Reports on Form 8-K
(each, a "Monthly Form 8-K") and Annual
Reports on Form 10-K (each, a "Form
10-K") customary for similar securities as
required by the Exchange Act and the
rules and regulations of the Securities and
Exchange Commission thereunder, and
the Trustee shall sign (other than any Form
10-K) and file (via the Securities
and Exchange Commission's Electronic Data
Gathering and Retrieval System) such
forms on behalf of the Trust. The Servicer
shall sign any Form 10-K.
(b) Each Monthly Form 8-K shall be filed by the Trustee within
15
days after each Distribution Date,
including a copy of the monthly statement to
Certificateholders delivered pursuant to
Section 5.04(b) (each, a "Distribution
Date Statement") for such Distribution Date
as an exhibit thereto. Prior to
March 30th of each year (or such earlier
date as may be required by the Exchange
Act and the rules and regulations of the
Securities and Exchange Commission)
commencing in the calendar year following
the date of this Agreement, the
Trustee shall file a Form 10-K, in
substance as required by applicable law or
applicable Securities and Exchange
Commission staff's interpretations. Such Form
10-K shall include as exhibits the
Servicer's annual statement of compliance
described under Section 3.18 and the
accountant's report described under Section
3.19, in each case, to the extent they have
been timely delivered to the
Trustee. If they are not so timely
delivered, the Trustee shall file an amended
Form 10-K including such documents as
exhibits reasonably promptly after they
are delivered to the Trustee. The Trustee
shall have no liability with respect
to any failure to properly prepare or file
such periodic reports resulting from
or relating to the Trustee's inability or
failure to obtain any information not
resulting from its own negligence, willful
misconduct or bad faith. The Form
10-K shall also include a certification in
the form attached hereto as Exhibit O
(the "Certification"), which shall be
signed by a senior officer of the Servicer
