Exhibit 4
================================================================================
BANC OF AMERICA FUNDING CORPORATION,
as
Depositor,
WELLS FARGO BANK, N.A.,
as Master Servicer,
WELLS FARGO BANK, N.A.,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated November 30, 2004
-----------------------
Mortgage Pass-Through Certificates
Series 2004-C
================================================================================
<PAGE>
TABLE OF CONTENTS
PRELIMINARY
STATEMENT...........................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms....................................................
Section 1.02
Calculations.....................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans.....................................
Section 2.02 Acceptance by the Trustee of
the Mortgage Loans..................
Section 2.03 Representations, Warranties
and Covenants of the Master
Servicer.........................................................
Section 2.04 Representations and
Warranties of the Depositor as to the
Mortgage
Loans...................................................
Section 2.05 Designation of Interests in
the REMICs...........................
Section 2.06 Designation of Start-up
Day......................................
Section 2.07 REMIC Certificate Maturity
Date..................................
Section 2.08 Execution and Delivery of
Certificates...........................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the
Mortgage Loans...........................
Section 3.02 Monitoring of
Servicers..........................................
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance....................
Section 3.04 Access to Certain
Documentation..................................
Section 3.05 Maintenance of Primary
Mortgage Insurance Policy; Claims.........
Section 3.06 Rights of the Depositor, the
Securities Administrator and
the Trustee in Respect of the Master
Servicer....................
Section 3.07 Trustee to Act as Master
Servicer................................
Section 3.08 Servicer Custodial Accounts;
Buy-Down Accounts...................
Section 3.09 Collection of Mortgage Loan
Payments; Master Servicer
Custodial Account, Servicer Custodial Account,
Distribution Account and Reserve
Account.........................
Section 3.10 Collection of Taxes,
Assessments and Similar Items;
Escrow
Accounts..................................................
Section 3.11 Access of Securities
Administrator and Trustee to Certain
Documentation and Information Regarding the Mortgage
Loans............................................................
Section 3.12 Permitted Withdrawals from
the Master Servicer Custodial
Account and the Distribution
Account.............................
Section 3.13 Maintenance of Hazard
Insurance and Other Insurance..............
Section 3.14 Presentment of Claims and
Collection of Proceeds.................
Section 3.15 Enforcement of Due-On-Sale
Clauses; Assumption Agreements........
Section 3.16 Realization Upon Defaulted
Mortgage Loans; REO Property..........
Section 3.17 Trustee to Cooperate;
Release of Mortgage Files..................
Section 3.18 Documents, Records and Funds
in Possession of the Master
Servicer to be Held for the
Trustee..............................
Section 3.19 Master Servicer
Compensation.....................................
Section 3.20 Annual Statement as to
Compliance................................
Section 3.21 Annual Independent Public
Accountants' Servicing
Statement; Financial
Statements..................................
Section 3.22
Advances.........................................................
Section 3.23 Reports to the Securities
and Exchange Commission................
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's
Certificate....................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions....................................................
Section 5.02 Priorities of Distributions
for the Shifting Interest
Groups...........................................................
Section 5.03 Priorities of Distributions
for Group 4..........................
Section 5.04 Allocation of Losses for the
Shifting Interest
Certificates.....................................................
Section 5.05 Allocation of Losses for the
Group 4 Certificates................
Section 5.06 Statements to
Certificateholders.................................
Section 5.07 Tax Returns and Reports to
Certificateholders....................
Section 5.08 Tax Matters
Person...............................................
Section 5.09 Rights of the Tax Matters
Person in Respect of the
Securities
Administrator.........................................
Section 5.10 REMIC Related
Covenants..........................................
Section 5.11 REMIC
Distributions..............................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.................................................
Section 6.02 Registration of Transfer and
Exchange of Certificates............
Section 6.03 Mutilated, Destroyed, Lost
or Stolen Certificates................
Section 6.04 Persons Deemed
Owners............................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of
the Depositor and the Master
Servicer.........................................................
Section 7.02 Merger or Consolidation of
the Depositor or the Master
Servicer.........................................................
Section 7.03 Limitation on Liability of
the Depositor, the Master
Servicer and
Others..............................................
Section 7.04 Depositor and Master
Servicer Not to Resign......................
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default................................................
Section 8.02 Remedies of
Trustee..............................................
Section 8.03 Directions by
Certificateholders and Duties of Trustee
During Event of
Default..........................................
Section 8.04 Action upon Certain Failures
of the Servicer and upon
Event of
Default.................................................
Section 8.05 Trustee to Act; Appointment
of Successor.........................
Section 8.06 Notification to
Certificateholders...............................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and
Securities Administrator...................
Section 9.02 Certain Matters Affecting
the Trustee and the Securities
Administrator....................................................
Section 9.03 Neither Trustee nor
Securities Administrator Liable for
Certificates or Mortgage
Loans...................................
Section 9.04 Trustee and Securities
Administrator May Own Certificates........
Section 9.05 Eligibility Requirements for
Trustee and the Securities
Administrator....................................................
Section 9.06 Resignation and Removal of
Trustee and the Securities
Administrator....................................................
Section 9.07 Successor Trustee or
Securities Administrator....................
Section 9.08 Merger or Consolidation of
Trustee or Securities
Administrator....................................................
Section 9.09 Appointment of Co-Trustee or
Separate Trustee....................
Section 9.10 Authenticating
Agents............................................
Section 9.11 Securities Administrator's
Fees and Expenses and
Trustee's
Expenses...............................................
Section 9.12 Appointment of
Custodian.........................................
Section 9.13 Paying
Agents....................................................
Section 9.14 Limitation of
Liability..........................................
Section 9.15 Trustee or Securities
Administrator May Enforce Claims
Without Possession of
Certificates...............................
Section 9.16 Suits for
Enforcement............................................
Section 9.17 Waiver of Bond
Requirement.......................................
Section 9.18 Waiver of Inventory,
Accounting and Appraisal Requirement........
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or
Liquidation of All Mortgage
Loans............................................................
Section 10.02 Additional Termination
Requirements..............................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment........................................................
Section 11.02 Recordation of Agreement;
Counterparts...........................
Section 11.03 Limitation on Rights of
Certificateholders.......................
Section 11.04 Governing
Law....................................................
Section 11.05
Notices..........................................................
Section 11.06 Severability of
Provisions.......................................
Section 11.07 Certificates Nonassessable and
Fully Paid........................
Section 11.08 Access to List of
Certificateholders.............................
Section 11.09
Recharacterization...............................................
<PAGE>
EXHIBITS
Exhibit A-1-A-1
Form of Face of Class 1-A-1 Certificate
Exhibit A-1-A-R
Form of Face of Class 1-A-R Certificate
Exhibit A-1-A-MR
Form of Face of Class 1-A-MR Certificate
Exhibit A-1-A-LR
Form of Face of Class 1-A-LR Certificate
Exhibit A-2-A-1
Form of Face of Class 2-A-1 Certificate
Exhibit A-2-A-2
Form of Face of Class 2-A-2 Certificate
Exhibit A-2-X-1
Form of Face of Class 2-X-1 Certificate
Exhibit A-3-A-1
Form of Face of Class 3-A-1 Certificate
Exhibit A-4-A-1
Form of Face of Class 4-A-1 Certificate
Exhibit A-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-CE
Form of Face of Class 4-CE Certificate
Exhibit A-4-R
Form of Face of Class 4-R Certificate
Exhibit A-4-LR
Form of Face of Class 4-LR Certificate
Exhibit B-1-B-1
Form of Face of Class 1-B-1 Certificate
Exhibit B-1-B-2
Form of Face of Class 1-B-2 Certificate
Exhibit B-1-B-3
Form of Face of Class 1-B-3 Certificate
Exhibit B-1-B-4
Form of Face of Class 1-B-4 Certificate
Exhibit B-1-B-5
Form of Face of Class 1-B-5 Certificate
Exhibit B-1-B-6
Form of Face of Class 1-B-6 Certificate
Exhibit B-CB-1
Form of Face of Class CB-1 Certificate
Exhibit B-CB-2
Form of Face of Class CB-2 Certificate
Exhibit B-CB-3
Form of Face of Class CB-3 Certificate
Exhibit B-CB-4
Form of Face of Class CB-4 Certificate
Exhibit B-CB-5
Form of Face of Class CB-5 Certificate
Exhibit B-CB-6 Form of
Face of Class CB-6 Certificate
Exhibit B-4-M-1
Form of Face of Class 4-M-1 Certificate
Exhibit B-4-M-2
Form of Face of Class 4-M-2 Certificate
Exhibit B-4-B-1
Form of Face of Class 4-B-1 Certificate
Exhibit B-4-B-2 Form of Face of
Class 4-B-2 Certificate
Exhibit C
Form of Reverse of all Certificates.....................
Exhibit D-1
Loan Group 1 Mortgage Loan Schedule.....................
Exhibit D-2
Loan Group 2 Mortgage Loan Schedule.....................
Exhibit D-3
Loan Group 3 Mortgage Loan Schedule.....................
Exhibit D-4
Loan Group 4 Mortgage Loan Schedule.....................
Exhibit D-5
Loan Subgroup 4A Mortgage Loan Schedule.................
Exhibit D-6
Loan Subgroup 4B Mortgage Loan Schedule.................
Exhibit E
Form of Request for Release.............................
Exhibit F
Form of Certification of Establishment of Account.......
Exhibit G-1
Form of Transferor's Certificate........................
Exhibit G-2A
Form I of Transferee's Certificate......................
Exhibit G-2B
Form II of Transferee's Certificate.....................
Exhibit H
Form of Transferee Representation Letter
for ERISA Restricted Certificates.......................
Exhibit I
Form of Affidavit Regarding Transfer of
Residual Certificates...................................
Exhibit J
List of Recordation States..............................
Exhibit K
Form of Initial Certification ..........................
Exhibit L
Form of Final Certification.............................
Exhibit M
Form of Certification...................................
Exhibit N
Form of Securities Administrator's Certification........
Exhibit O
Form of Yield Maintenance Agreements....................
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated November 30, 2004
is
hereby executed by and among BANC OF
AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and
assigns, the "Depositor"), WELLS
FARGO BANK, N.A., as master servicer
(together with its permitted successors and
assigns, the "Master Servicer"), WELLS
FARGO BANK, N.A., as securities
administrator (together with its permitted
successors and assigns, the
"Securities Administrator") and WACHOVIA
BANK, NATIONAL ASSOCIATION, as trustee
(together with its permitted successors and
assigns, the "Trustee").
W I T N E S S E T H T
H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the
Securities Administrator and the Trustee
agree as follows:
PRELIMINARY STATEMENT
The Trust Estate for federal income tax purposes will be treated
as
five real estate mortgage investment
conduits (the "Upper-Tier REMIC," the
"Middle-Tier REMIC," the "Lower-Tier
REMIC," the "Group 4 Upper-Tier REMIC" and
the "Group 4 Lower-Tier REMIC,"
respectively, and each a "REMIC"). The
Certificates (other than the Class 1-A-R,
Class 1-A-MR, Class 1-A-LR, Class
4-CE, Class 4-R and Class 4-LR Certificates
and the Group 4 Certificates) shall
constitute "regular interests" in the
Upper-Tier REMIC. The Group 4 Certificates
(exclusive of the right of such
Certificates to receive Cap Carryover Amounts)
and the Class 4-CE Certificates shall
constitute "regular interests" in the
Group 4 Upper-Tier REMIC. The
Uncertificated Middle-Tier Interests shall
constitute the "regular interests" in the
Middle-Tier REMIC. The Uncertificated
Lower-Tier Interests shall constitute the
"regular interests" in the Lower-Tier
REMIC. The Uncertificated Group 4
Lower-Tier Interests shall constitute the
"regular interests" in the Group 4
Lower-Tier REMIC. The Class 1-A-R Certificate
shall be the "residual interest" in the
Upper-Tier REMIC, the Class 1-A-MR
Certificate shall be the "residual
interest" in the Middle-Tier REMIC, the Class
1-A-LR Certificate shall be the "residual
interest" in the Lower-Tier REMIC, the
Class 4-R Certificate shall be the
"residual interest" in the Group 4 Upper-Tier
REMIC and the Class 4-LR Certificate shall
be the "residual interest" in the
Group 4 Lower-Tier REMIC. The portion of
the Trust Estate consisting of the
Reserve Account, the Yield Maintenance
Agreements, the rights of the Group 4
Certificates to receive Cap Carryover
Amounts and the obligation of the Class
4-CE Certificates to pay Cap Carryover
Amounts shall not be assets of any REMIC
created hereunder, but rather shall be
assets of the Grantor Trust. The assets
of the Grantor Trust, the Certificates, the
Uncertificated Middle-Tier
Interests, the Uncertificated Lower-Tier
Interests and the Uncertificated Group
4 Lower-Tier Interests will represent the
entire beneficial ownership interest
in the Trust. The "latest possible maturity
date" for federal income tax
purposes of all interests created hereby
will be the REMIC Certificate Maturity
Date.
The following table sets forth characteristics of the
Certificates,
together with the minimum denominations and
integral multiples in excess thereof
in which the Classes of Certificates shall
be issuable:
Initial Class
Minimum
Integral
Certificate Pass-
Denomination/
Multiples
Balance or Through
Percentage
in
Excess
Classes
Notional Amount Rate
Interest of
Minimum
------------ --------------- ------- ------------- ----------
Class 1-A-1 $49,502,000.00
(1)
$1,000
$1
Class 1-A-R
$50.00 (1)
$50 N/A
Class 1-A-MR
$25.00 (1)
$25 N/A
Class 1-A-LR
$25.00 (1)
$25 N/A
Class 2-A-1 $25,000,000.00
(2)
$1,000
$1
Class 2-A-2 $21,024,000.00
(2)
$1,000
$1
Class 2-X-1 $46,024,000.00
(3)
$1,000,000
$1
Class 3-A-1 $77,860,000.00
(4)
$1,000
$1
Class 4-A-1 $154,679,000.00
(5)
$1,000
$1
Class 4-A-2 $78,808,000.00
(6)
$1,000
$1
Class 4-A-3 $22,902,000.00
(7)
$1,000
$1
Class 4-CE
(8)
(8)
N/A N/A
Class 4-R
N/A
N/A
N/A N/A
Class 4-LR
N/A
N/A
N/A N/A
Class 1-B-1
$587,000.00 (1)
$25,000
$1
Class 1-B-2
$255,000.00 (1)
$25,000
$1
Class 1-B-3
$255,000.00 (1)
$25,000
$1
Class 1-B-4
$281,000.00 (1)
$25,000
$1
Class 1-B-5
$77,000.00 (1)
$25,000
$1
Class 1-B-6
$76,631.00 (1)
$25,000
$1
Class CB-1
$6,962,000.00
(9)
$25,000
$1
Class CB-2
$1,487,000.00 (9)
$25,000
$1
Class CB-3
$946,000.00 (9)
$25,000
$1
Class CB-4
$811,000.00 (9)
$25,000
$1
Class CB-5
$608,000.00 (9)
$25,000
$1
Class CB-6
$473,625.00 (9)
$25,000
$1
Class 4-M-1
$8,239,000.00 (10)
$25,000
$1
Class 4-M-2
$6,004,000.00 (10)
$25,000
$1
Class 4-B-1
$3,491,000.00 (10)
$25,000
$1
Class 4-B-2
$1,676,000.00 (10)
$25,000
$1
Integral
Initial
Pass-
Multiples
In
Component Through
Minimum
Excess
Of
Components
Balance
Rate
Denomination Minimum
------------ --------------- ------- ------------- ----------
Class 4-A-3A $15,172,000.00
(11)
N/A
N/A
Class 4-A-3B $7,730,000.00
(12)
N/A
N/A
----------
(1) For each Distribution Date,
interest will accrue on these Certificates at
a per
annum rate equal to the Net WAC for the Group 1 Mortgage Loans.
(2) For each Distribution Date
occurring prior to and including the
Distribution Date in October 2007, interest will accrue on the
Class 2-A-1
and Class
2-A-2 Certificates at a per annum rate equal to the Net WAC for
the Group
2 Mortgage Loans minus 0.647% and 0.598% per annum,
respectively. For each Distribution Date occurring on and after
the
Distribution Date in November 2007, interest will accrue on the
Class
2-A-1 and
Class 2-A-2 Certificates at a per annum rate equal to the Net
WAC for
the Group 2 Mortgage Loans.
(3) Interest will accrue on the
Class 2-X-1 Certificates through the
Distribution Date in October 2007 at a per annum rate equal to
0.624617%.
No
interest will accrue on the Class 2-X-1 Certificates on and after
the
Distribution Date in November 2007.
(4) For each Distribution Date,
interest will accrue on the Class 3-A-1
Certificates at a per annum rate equal to the Net WAC for the Group
3
Mortgage
Loans.
(5) For each Distribution Date
occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a
per
annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.33%
and (ii)
the Subgroup 4A Cap. On each Distribution Date following the
applicable
Termination Date, interest will accrue on these Certificates at
a per
annum rate equal to the lesser of (i) the sum of One-Month LIBOR
and
0.66% and
(ii) the Subgroup 4A Cap.
(6) For each Distribution Date
occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a
per
annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.34%
and (ii) the Subgroup 4B
Cap. On each Distribution Date following the
applicable
Termination Date, interest will accrue on these Certificates at
a per
annum rate equal to the lesser of (i) the sum of One-Month LIBOR
and
0.68% and
(ii) the Subgroup 4B Cap.
(7) The Class 4-A-3 Certificates
will be deemed for purposes of distributions
of
principal and interest to consist of two Components as described in
the
table; the
Class 4-A-3A Component and the Class 4-A-3B Component (each, a
"Component"). The Components are not severable.
(8) Solely for REMIC purposes,
the Class 4-CE Certificates will (i) have an
initial
Original Class Certificate Balance equal to the Initial
Overcollateralization Amount and (ii) will bear interest on their
Notional
Amount at
their Pass-Through Rate.
(9) Interest will accrue on
these Certificates as of any Distribution Date at
a per
annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of the Net WAC for each of
the
Group 2
and Group 3 Mortgage Loans.
(10) For each Distribution Date
occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a
per
annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and
0.60%,
1.10%, 1.75% and 1.75% with respect to the Class 4-M-1, Class
4-M-2,
Class 4-B-1 and Class 4-B-2 Certificates, respectively, and
(ii)
the Group
4 Cap. On each Distribution Date following the applicable
Termination Date, interest will accrue on these Certificates at a
per
annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and
0.90%,
1.65%, 2.625% and 2.625% with respect to the Class 4-M-1, Class
4-M-2,
Class 4-B-1 and Class 4-B-2 Certificates, respectively, and
(ii)
the Group
4 Cap.
(11) For each Distribution Date
occurring prior to and including the applicable
Termination Date, interest will accrue on this Component at a per
annum
rate equal
to the lesser of (i) the sum of One-Month LIBOR and 0.45% and
(ii) the
Subgroup 4A Cap. On each Distribution Date following the
applicable
Termination Date, interest will accrue on these Certificates at
a per
annum rate equal to the lesser of (i) the sum of One-Month LIBOR
and
0.90% and
(ii) the Subgroup 4A Cap.
(12) For each Distribution Date
occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a
per
annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.45%
and (ii)
the Subgroup 4B Cap. On each Distribution Date following the
applicable
Termination Date, interest will accrue on these Certificates at
a per
annum rate equal to the lesser of (i) the sum of One-Month LIBOR
and
0.90% and
(ii) the Subgroup 4B Cap.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
60+ Day Delinquent Loan: For each Distribution Date, each Group
4
Mortgage Loan (including each Group 4
Mortgage Loan in foreclosure and each
Group 4 Mortgage Loan for which the
Mortgagor has filed for bankruptcy after the
Closing Date) with respect to which any
portion of a Monthly Payment is, as of
the Due Date in the prior calendar month,
two months or more past due and each
Group 4 Mortgage Loan relating to an REO
Property.
4LT Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a)
the product of (i) 50% of the Pool
Stated Principal Balance of the Group 4
Mortgage Loans and (ii) the Group 4
Lower-Tier Rate for Regular Interest LT1AA
minus the Marker Rate, divided by (b)
12.
4LT Marker Allocation Percentage: 50% of any amount payable from
or
loss attributable to the Group 4 Mortgage
Loans, which shall be allocated to
Regular Interest LT1AA, Regular Interest
LT1A1, Regular Interest LT1A2, Regular
Interest LT1A3A, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular
Interest LT1M2, Regular Interest LT1B1,
Regular Interest LT1B2 and Regular
Interest LT1ZZ as provided in Section
5.11(c)(i).
4LT Overcollateralization Target Amount: 0.50% of the Targeted
Overcollateralization Amount.
4LT Overcollateralized Amount: With respect to any date of
determination, (i) 0.50% of the aggregate
Uncertificated Principal Balances of
the Group 4 Uncertificated Lower-Tier
Interests minus (ii) the aggregate of the
Uncertificated Principal Balances of
Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest
LT1B1 and Regular Interest LT1B2, in
each case as of such date of
determination.
4LT Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a)
the product of (i) 50% of the Pool
Stated Principal Balance of the Group 4
Mortgage Loans and (ii) 1 minus a
fraction, the numerator of which is two
times the aggregate of the
Uncertificated Principal Balances of
Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest
LT1B1 and Regular Interest LT1B2 and
the denominator of which is the aggregate
of the Uncertificated Principal
Balances of Regular Interest LT1A1, Regular
Interest LT1A2, Regular Interest
LT1A3A, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest
LT1B2 and Regular Interest LT1ZZ.
4LT Sub WAC Allocation Percentage: 50% of any amount payable or
loss
attributable from the Group 4 Mortgage
Loans, which shall be allocated to
Regular Interest LT1SUB, Regular Interest
LT1GRP, Regular Interest LT2SUB,
Regular Interest LT2GRP and Regular
Interest LT1XX.
Accrued Certificate Interest: For any Distribution Date and
each
Class of interest-bearing Certificates
(other than the Class 4-A-3
Certificates), one month's interest accrued
during the related Interest Accrual
Period at the applicable Pass-Through Rate
on the related Class Certificate
Balance or Notional Amount less, in the
case of the Offered Group 4 Certificates
(other than the Class 4-A-3 Certificates),
such Class' Interest Percentage of
Relief Act Shortfalls for such Distribution
Date. For any Distribution Date and
the Class 4-A-3 Certificates, the sum of
the Accrued Component Interest for each
Component.
Accrued Component Interest: For any Distribution Date and each
Component, one month's interest accrued
during the related Interest Accrual
Period at the applicable Pass-Through Rate
on the related Component Balance less
such Component's Interest Percentage of
Relief Act Shortfalls for such
Distribution Date.
Adjusted Pool Amount: With respect to any Distribution Date and
Shifting Interest Loan Group, the Cut-off
Date Pool Principal Balance of the
Mortgage Loans in such Loan Group minus the
sum of (i) all amounts in respect of
principal received in respect of the
Mortgage Loans in such Loan Group
(including, without limitation, amounts
received as Monthly Payments, Periodic
Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates of the
Related Group on such Distribution Date and
all prior Distribution Dates and
(ii) the principal portion of all Realized
Losses (other than Debt Service
Reductions) incurred on the Mortgage Loans
in such Loan Group from the Cut-off
Date through the end of the month preceding
such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Overcollateralization Release Amount: With respect to
any
Distribution Date, the lesser of (i) the
Group 4 Principal Remittance Amount and
(ii) the Overcollateralization Release
Amount.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Applied Realized Loss Amount: With respect to each Distribution
Date
prior to and on the Distribution Date on
which the Class Certificate Balance of
the Class 4-M-1 Certificates is reduced to
zero, the excess, if any, of the
aggregate of (a) the Class Certificate
Balances of the Offered Group 4
Certificates (after taking into account the
distribution of the Group 4
Principal Distribution Amount on such
Distribution Date and any increase in any
Class Certificate Balance of the Offered
Group 4 Certificates as a result of
Recoveries) over (b) the Pool Stated
Principal Balance for Loan Group 4 as of
the Due Date in the month of such
Distribution Date. With respect to each
Distribution Date after the Distribution
Date on which the Class Certificate
Balance of the Class 4-M-1 Certificates has
been reduced to zero, zero.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value
determined in an appraisal obtained by the
originator at origination of such Mortgage
Loan or, in certain cases, an
automated valuation model or tax assessed
value and (b) the sales price for such
property, except that, in the case of
Mortgage Loans the proceeds of which were
used to refinance an existing mortgage
loan, the Appraised Value of the related
Mortgaged Property is the appraised value
thereof determined in an appraisal
obtained at the time of refinancing or, in
certain cases, an automated valuation
model or tax assessed value, or (ii) the
appraised value determined in an
appraisal made at the request of a
Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to
keep a Primary Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument
in recordable form, sufficient under
the laws of the jurisdiction wherein the
related Mortgaged Property is located
to give record notice of the sale of the
Mortgage.
Available Funds: As to any Distribution Date, the sum of the Group
4
Interest Remittance Amount and the Group 4
Principal Remittance Amount for such
Distribution Date.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor in
interest.
BANA: Bank of America, National Association, a national banking
association, or its successor in
interest.
BANA Servicing Agreement: The Servicing Agreement, dated
November
30, 2004, by and between BAFC, as
depositor, and BANA, as servicer.
Book-Entry Certificate: All Classes of Certificates other than
the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the
State of North Carolina, the State of
New York, the State of Minnesota, the State
of Maryland, the state in which the
master servicing offices of the Master
Servicer is located or the states in
which the Corporate Trust Offices of the
Trustee and the Securities
Administrator are located are required or
authorized by law or executive order
to be closed.
Buy-Down Account: The separate Eligible Account or Accounts
created
and maintained by a Servicer pursuant to
Section 3.08.
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
5.04(c).
Cap: Any of the Subgroup 4A Cap, the Subgroup 4B Cap or the Group
4
Cap.
Cap Carryover Amount: If on any Distribution Date the Accrued
Certificate Interest for any Class of
Offered Group 4 Certificates or the
Accrued Component Interest for any
Component is based upon clause (ii) of the
applicable Cap, the excess of (i) the
amount of interest such Class or Component
would have been entitled to receive on such
Distribution Date based on the
related Pass-Through Rate (without regard
to the applicable Cap), over (ii) the
amount of interest such Class or Component
received on such Distribution Date
based on the applicable Cap, together with
the unpaid portion of any such excess
from prior Distribution Dates (and interest
accrued thereon at the then
applicable Pass-Through Rate on such Class
or Component).
CB Crossed Group: Any of Group 2 or Group 3.
CB Crossed Loan Group: Any of Loan Group 2 or Loan Group 3.
CB Crossed Loan Group Senior Percentage: With respect to any
Distribution Date, the percentage, carried
six places rounded up, obtained by
dividing the aggregate Class Certificate
Balance of the Senior Certificates of
the CB Crossed Groups immediately prior to
such Distribution Date by the
aggregate Pool Stated Principal Balance of
the CB Crossed Loan Groups with
respect to such Distribution Date.
CB Crossed Loan Group Subordinate Percentage: As to any
Distribution
Date, the aggregate Class Certificate
Balance of the Class CB Certificates
divided by the aggregate Pool Stated
Principal Balance for Loan Group 2 and Loan
Group 3.
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2004-C
that are issued pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate (other than
the
Class 2-X-1, Class 4-CE, Class 4-R and
Class 4-LR Certificates) at any date, the
maximum dollar amount of principal to which
the Holder thereof is then entitled
hereunder, such amount being equal to the
product of the Percentage Interest of
such Certificate and the Class Certificate
Balance of the Class of Certificates
of which such Certificate is a part. The
Class 2-X-1, Class 4-CE, Class 4-R and
Class 4-LR Certificates have no Certificate
Balance.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable
to the Depository and selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a
Book-Entry Certificate. With respect to
any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor or the Master
Servicer or any affiliate thereof shall be
deemed not to be outstanding and the
Percentage Interest and Voting Rights
evidenced thereby shall not be taken into
account in determining whether the
requisite amount of Percentage Interests or
Voting Rights, as the case may be,
necessary to effect any such consent has
been obtained, unless such entity is
the registered owner of the entire Class of
Certificates, provided that the
Securities Administrator shall not be
responsible for knowing that any
Certificate is registered in the name of an
affiliate of the Depositor or the
Master Servicer unless one of its
Responsible Officers has actual knowledge
thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-R,
Class
1-A-MR, Class 1-A-LR, Class 2-A-1, Class
2-A-2, Class 2-X-1, Class 3-A-1, Class
4-A-1, Class 4-A-2, Class 4-A-3, Class
4-CE, Class 4-R, Class 4-LR, Class 4-M-1,
Class 4-M-2, Class 4-B-1, Class 4-B-2,
Class 1-B-1, Class 1-B-2, Class 1-B-3,
Class 1-B-4, Class 1-B-5, Class 1-B-6,
Class CB-1, Class CB-2, Class CB-3, Class
CB-4, Class CB-5 and Class CB-6
Certificates, as the case may be.
Class 1-B Certificates: The Class 1-B-1, Class 1-B-2, Class
1-B-3,
Class 1-B-4, Class 1-B-5 and Class 1-B-6
Certificates.
Class 2-X-1 Notional Amount: As to any Distribution Date and
the
Class 2-X-1 Certificates, the sum of the
Class Certificate Balances of the Class
2-A-1 and Class 2-A-2 Certificates.
Class 4-A Certificates: The Class 4-A-1, Class 4-A-2 and Class
4-A-3
Certificates.
Class 4-A-3A Applied Realized Loss Amount: With respect to any
Distribution Date before the aggregate
Class Certificate Balance of the Class M
and Class 4-B Certificates has been reduced
to zero, zero. With respect to any
Distribution Date on and after the Class
Certificate Balance of the Class 4-M-1
Certificates has been reduced to zero, and
after the Applied Realized Loss
Amount has been allocated pursuant to
Section 5.05, the excess, if any, of (a)
the sum of the Class Certificate Balance of
the Class 4-A-1 Certificates and the
Component Balance of the Class 4-A-3A
Component (after taking into account the
distribution of the Group 4 Principal
Distribution Amount on such Distribution
Date and any increase in the Class
Certificate Balance of the Class 4-A-1
Certificates or the Component Balance of
the Class 4-A-3A Component as a result
of Recoveries) over (b) the Pool Stated
Principal Balance for Loan Subgroup 4A
as of the Due Date in the month of such
Distribution Date.
Class 4-A-3B Applied Realized Loss Amount: With respect to any
Distribution Date before the aggregate
Class Certificate Balance of the Class M
and Class 4-B Certificates has been reduced
to zero, zero. With respect to any
Distribution Date on and after the Class
Certificate Balance of the Class 4-M-1
Certificates has been reduced to zero, and
after the Applied Realized Loss
Amount has been allocated pursuant to
Section 5.05, the excess, if any, of (a)
the sum of the Class Certificate Balance of
the Class 4-A-2 Certificates and the
Component Balance of the Class 4-A-3B
Component (after taking into account the
distribution of the Group 4 Principal
Distribution Amount on such Distribution
Date and any increase in the Class
Certificate Balance of the Class 4-A-2
Certificates or the Component Balance of
the Class 4-A-3B Component as a result
of Recoveries) over (b) the Pool Stated
Principal Balance for Loan Subgroup 4B
as of the Due Date in the month of such
Distribution Date.
Class 4-B Certificates: The Class 4-B-1 and Class 4-B-2
Certificates.
Class 4-B-1 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as
long as a Trigger Event is not in
effect, the excess of (x) the sum of (i)
the aggregate Class Certificate Balance
of the Class 4-A Certificates (after taking
into account the payment of the
Group 4 Senior Principal Distribution
Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class
4-M-1 Certificates (after taking into
account the payment of the Class 4-M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Class
Certificate Balance of the Class 4-M-2
Certificates (after taking into account the
payment of the Class 4-M-2 Principal
Distribution Amount on such Distribution
Date), and (iv) the Class Certificate
Balance of the Class 4-B-1 Certificates
immediately prior to such Distribution
Date over (y) the lesser of (A) the product
of (i) 96.30% and (ii) the Pool
Stated Principal Balance for Loan Group 4
as of the Due Date in the month of
such Distribution Date and (B) the amount
by which the Pool Stated Principal
Balance for Loan Group 4 as of the Due Date
in the month of such Distribution
Date exceeds the product of (i) 1.25% and
(ii) the Cut-off Date Pool Principal
Balance for Loan Group 4.
Class 4-B-1 Realized Loss Amortization Amount: As to the Class
4-B-1
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 4-B-1
Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the
sum of the amounts described in Section
5.03(c)(i) through (xi) hereof, in each
case for such Distribution Date.
Class 4-B-2 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as
long as a Trigger Event is not in
effect, the excess of (x) the sum of (i)
the aggregate Class Certificate Balance
of the Class 4-A Certificates (after taking
into account the payment of the
Group 4 Senior Principal Distribution
Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class
4-M-1 Certificates (after taking into
account the payment of the Class 4-M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Class
Certificate Balance of the Class 4-M-2
Certificates (after taking into account the
payment of the Class 4-M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Class Certificate
Balance of the Class 4-B-1 Certificates
(after taking into account the payment
of the Class 4-B-1 Principal Distribution
Amount on such Distribution Date), and
(v) the Class Certificate Balance of the
Class 4-B-2 Certificates immediately
prior to such Distribution Date over (y)
the lesser of (A) the product of (i)
97.50% and (ii) the Pool Stated Principal
Balance for Loan Group 4 as of the Due
Date in the month of such Distribution Date
and (B) the amount by which the Pool
Stated Principal Balance for Loan Group 4
as of the Due Date in the month of
such Distribution Date exceeds the product
of (i) 1.25% and (ii) the Cut-off
Date Pool Principal Balance for Loan Group
4.
Class 4-B-2 Realized Loss Amortization Amount: As to the Class
4-B-2
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 4-B-2
Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the
sum of the amounts described in Section
5.03(c)(i) through (xiv) hereof, in each
case for such Distribution Date.
Class 4-CE Distributable Amount: With respect to any
Distribution
Date, the sum of (i) the interest accrued
on such Class 4-CE Certificate at its
Pass-Through Rate calculated on its
Notional Amount less the amount (without
duplication) of Cap Carryover Amounts paid
pursuant to Section 5.03(c)(xvi),
(ii) any remaining Aggregate
Overcollateralization Release Amounts, (iii) the
aggregate of amounts remaining in the
Reserve Account after the distributions in
Section 3.09(h)(i)(A).
Class 4-CE Uncertificated Principal Balance: As of any date of
determination, the Initial
Overcollateralization Amount minus the sum of (i) any
Realized Losses allocated thereto and (ii)
any amounts distributed (or deemed
distributed) to the Class 4-CE Certificates
with respect thereto.
Class 4-M-1 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as
long as a Trigger Event is not in
effect, the excess of (x) the sum of (i)
the aggregate Class Certificate Balance
of the Class 4-A Certificates (after taking
into account the payment of the
Group 4 Senior Principal Distribution
Amount on such Distribution Date) and (ii)
the Class Certificate Balance of the Class
4-M-1 Certificates immediately prior
to such Distribution Date over (y) the
lesser of (A) the product of (i) 89.50%
and (ii) the Pool Stated Principal Balance
for Loan Group 4 as of the Due Date
in the month of such Distribution Date and
(B) the amount by which the Pool
Stated Principal Balance for Loan Group 4
as of the Due Date in the month of
such Distribution Date exceeds the product
of (i) 1.25% and (ii) the Cut-off
Date Pool Principal Balance for Loan Group
4.
Class 4-M-1 Realized Loss Amortization Amount: As to the Class
4-M-1
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 4-M-1
Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the
sum of the amounts described in Section
5.03(c)(i) through (v) hereof, in each
case for such Distribution Date.
Class 4-M-2 Principal Distribution Amount: As of any
Distribution
Date on or after the Stepdown Date and as
long as a Trigger Event is not in
effect, the excess of (x) the sum of (i)
the aggregate Class Certificate Balance
of the Class 4-A Certificates (after taking
into account the payment of the
Group 4 Senior Principal Distribution
Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class
4-M-1 Certificates (after taking into
account the payment of the Class 4-M-1
Principal Distribution Amount on such
Distribution Date) and (iii) the Class
Certificate Balance of the Class 4-M-2
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 93.80% and (ii) the
Pool Stated Principal Balance for
Loan Group 4 as of the Due Date in the
month of such Distribution Date and (B)
the amount by which the Pool Stated
Principal Balance for Loan Group 4 as of the
Due Date in the month of such Distribution
Date exceeds the product of (i) 1.25%
and (ii) the Cut-off Date Pool Principal
Balance for Loan Group 4.
Class 4-M-2 Realized Loss Amortization Amount: As to the Class
4-M-2
Certificates and as of any Distribution
Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 4-M-2
Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the
sum of the amounts described in Section
5.03(c)(i) through (viii) hereof, in
each case for such Distribution Date.
Class A Certificates: The Class 1-A-1, Class 1-A-R, Class
1-A-MR,
Class 1-A-LR, Class 2-A-1, Class 2-A-2,
Class 3-A-1, Class 4-A-1, Class 4-A-2
and Class 4-A-3 Certificates.
Class B Certificates: The Class 1-B Certificates, the Class CB
Certificates and the Class 4-B
Certificates.
Class CB Certificates: The Class CB-1, Class CB-2, Class CB-3,
Class
CB-4, Class CB-5 and Class CB-6
Certificates.
Class CB Subordinate Balance Ratio: As of any date of
determination,
the ratio between the principal balances of
the Class 2-LS Interest and the
Class 3-LS Interest, equal to the ratio
between the Group Subordinate Amount of
Loan Group 2 and the Group Subordinate
Amount of Loan Group 3.
Class Certificate Balance: Class Certificate Balance means,
with
respect to (i) any Class of Shifting
Interest Certificates (other than the Class
2-X-1 Certificates) and any date of
determination, and subject to Section
5.04(g), the Initial Class Certificate
Balance of such Class minus (A) the sum
of (i) all distributions of principal made
with respect thereto and (ii) all
reductions in Class Certificate Balance
previously allocated thereto pursuant to
Section 5.04(a) plus (B) the sum of (i) all
increases in the Class Certificate
Balance previously allocated thereto
pursuant to Section 5.04(a) and (ii) any
Class of Offered Group 4 Certificates
(other than the Class 4-A-3 Certificates)
and any Distribution Date, and subject to
Section 5.03(f), the Initial Class
Certificate Balance of such Class (a)
reduced by the sum of (i) all amounts
actually distributed in respect of
principal of such Class on all prior
Distribution Dates and (ii) Applied
Realized Loss Amounts allocated thereto for
previous Distribution Dates pursuant to
Section 5.05 and (b) increased by any
Recoveries allocated to such Class for
previous Distribution Dates. The Class
Certificate Balance of the Class 4-A-3
Certificates will equal the sum of the
Component Balances of the Components. The
Class 2-X-1 Certificates are
Interest-Only Certificates and have no
Class Certificate Balance. The Class
4-CE, Class 4-R and Class 4-LR Certificates
do not have a Class Certificate
Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class of Shifting Interest
Certificates, the amount by which
Accrued Certificate Interest for such Class
(as reduced pursuant to Section
5.02(c)) exceeds the amount of interest
actually distributed on such Class on
such Distribution Date pursuant to clause
(i) of the definition of "Interest
Distribution Amount."
Class M Certificates: The Class 4-M-1 Certificates and the
Class
4-M-2 Certificates.
Class M Certificateholders: Collectively, the Holders of the Class
M
Certificates.
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class of Shifting
Interest Certificates, the amount by
which the aggregate Class Interest
Shortfalls for such Class on prior
Distribution Dates exceeds the amount of
interest actually distributed on such
Class on such prior Distribution Dates
pursuant to clause (ii) of the definition
of "Interest Distribution Amount."
Closing Date: November 30, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date
and
Servicer, an amount equal to the lesser of
(a) the aggregate Servicing Fee
payable to such Servicer for the Mortgage
Loans serviced by such Servicer as of
the Due Date in the month preceding the
month of such Distribution Date and (b)
the aggregate Prepayment Interest Shortfall
for the Mortgage Loans serviced by
such Servicer for such Distribution Date.
To the extent that Compensating
Interest for a Servicer is calculated
pursuant to clause (a) of the previous
sentence, such Compensating Interest shall
be allocated to Loan Group 1, the CB
Crossed Loan Groups in the aggregate and
Loan Group 4, pro rata, based on the
aggregate Prepayment Interest Shortfalls
for such Distribution Date on the
Mortgage Loans in such Loan Group or Loan
Groups, as the case may be, serviced
by such Servicer.
Component Balance: With respect to any Component and any date
of
determination, the Initial Component
Balance of such Component (a) reduced by
the sum of (i) all amounts actually
distributed in respect of principal of such
Component on all prior Distribution Dates
and (ii) Class 4-A-3A Applied Realized
Loss Amounts or Class 4-A-3B Applied
Realized Loss Amount allocated thereto, as
the case may be, for previous Distribution
Dates pursuant to Section 5.05 and
(b) increased by any Recoveries allocated
to such Component for previous
Distribution Dates.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the
principal
office of the Trustee, which office at the
date of the execution of this
instrument is located at 401 South Tryon
Street, Charlotte, North Carolina,
28288-1179 Attention: Structured Finance
Trust Services, BAFC, Series 2004-C, or
at such other address as the Trustee may
designate from time to time by notice
to the Certificateholders, the Depositor,
the Securities Administrator and the
Master Servicer. With respect to the
Securities Administrator, the principal
corporate trust office of the Securities
Administrator at which at any
particular time its corporate trust
business with respect to this Agreement is
conducted, which office at the date of the
execution of this instrument is
located at 9062 Old Annapolis Road,
Columbia, Maryland 21045-1951, Attention:
Corporate Trust Services - BAFC 2004-C, and
for certificate transfer purposes is
located at Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479,
Attention: Corporate Trust Services - BAFC
2004-C, or at such other address as
the Securities Administrator may designate
from time to time by notice to the
Certificateholders, the Depositor, the
Trustee and the Master Servicer.
Corresponding Classes or Components: With respect to the Group
4
Lower-Tier REMIC and the Group 4 Upper-Tier
REMIC, the following Classes or
Components shall be Corresponding Classes
or Components:
Corresponding Group 4 Corresponding Group 4
Upper-
Lower-Tier Interests Tier Classes or
Components
---------------------
----------------------------
LT1A1
Class 4-A-1 Certificates
LT1A2
Class 4-A-2 Certificates
LT1A3A
Class 4-A-3A Component
LT1A3B
Class 4-A-3B Component
LT1M1
Class 4-M-1 Certificates
LT1M2
Class 4-M-2 Certificates
LT1B1
Class 4-B-1 Certificates
LT1B2
Class 4-B-2 Certificates
Corresponding Upper-Tier Class or Classes: As to each of the
following Uncertificated Middle-Tier
Interests, the Corresponding Upper-Tier
Class or Classes, as follows:
Uncertificated Middle-
Tier Interest
Corresponding Upper-Tier Class or Classes
----------------------
-------------------------------------------------------
Class 1-A-M1 Interest Class 1-A-1
Certificates
Class 1-A-MUR Interest Class 1-A-R Certificate
Class 2-A-M1 Interest Class 2-A-1, Class
2-A-2 and Class 2-X-1 Certificates
Class 3-A-M1 Interest Class 3-A-1
Certificates
Class 1-B-M1 Interest Class 1-B-1
Certificates
Class 1-B-M2 Interest Class 1-B-2
Certificates
Class 1-B-M3 Interest Class 1-B-3
Certificates
Class 1-B-M4 Interest Class 1-B-4
Certificates
Class 1-B-M5 Interest Class 1-B-5
Certificates
Class 1-B-M6 Interest Class 1-B-6
Certificates
Class CB-M1 Interest Class CB-1
Certificates
Class CB-M2 Interest Class CB-2
Certificates
Class CB-M3 Interest Class CB-3
Certificates
Class CB-M4 Interest Class CB-4
Certificates
Class CB-M5 Interest Class CB-5
Certificates
Class CB-M6 Interest Class CB-6
Certificates
Countrywide Servicing Agreement: The Master Mortgage Loan
Purchase
and Servicing Agreement, dated as of April
1, 2003, by and between BANA (as
successor in interest to Banc of America
Mortgage Capital Corporation) and
Countrywide Home Loans, Inc., as amended by
(i) that certain Amendment No. 1,
dated as of July 1, 2003, by and among Banc
of America Mortgage Capital
Corporation, Countrywide Home Loans, Inc.
and BANA and (ii) that certain
Amendment No. 2, dated as of September 1,
2004, by and among Banc of America
Mortgage Capital Corporation, Countrywide
Home Loans, Inc. and BANA.
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. None of
any Servicer, the Depositor or any Person
directly or indirectly controlling or
controlled by or under common control with
any such Person may be appointed
Custodian.
Customary Servicing Procedures: With respect to each Servicer,
procedures (including collection
procedures) that such Servicer customarily
employs and exercises in servicing and
administering mortgage loans for its own
account and which are in accordance with
accepted mortgage servicing practices
of prudent lending institutions servicing
mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties
are located.
Cut-off Date: November 1, 2004.
Cut-off Date Pool Principal Balance: For each Loan Group or
Loan
Subgroup, the aggregate of the Cut-off Date
Principal Balances of the Mortgage
Loans in such Loan Group or Loan Subgroup
which is $51,033,731.33 for Loan Group
1, $50,217,984.71 for Loan Group 2,
$84,953,640.83 for Loan Group 3,
$279,291,763.10 for Loan Group 4,
$185,023,413.72 for Loan Subgroup 4A and
$94,268,349.38 for Loan Subgroup 4B.
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 related Servicer
is pursuing an appeal of the court order
giving rise to any such modification
and (b)(1) such Mortgage Loan is not in
default with respect to payment due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the related
Servicer in accordance with the terms of
such Mortgage Loan as in effect on the
Cut-off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service
Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for
pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then
outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation
thereof established by a court of competent
jurisdiction (pursuant to an order which
has become final and nonappealable) as
a result of a proceeding initiated by or
against the related Mortgagor under the
Bankruptcy Code, as amended from time to
time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged
Property; provided that no such excess
shall be considered a Deficient Valuation
so long as (a) the related Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payments due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the related
Servicer in accordance with the terms of
such Mortgage Loan as in effect on the
Cut-off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest,
as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of
the Book-Entry Certificates or any
successor thereto appointed in accordance
with this Agreement. The Depository
shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: With respect to any Distribution Date and
for
each Servicer, as defined in the applicable
Servicing Agreement.
Distribution Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to
Section 3.09(c) in the name of the
Securities Administrator for the benefit of
the Certificateholders and
designated "Wells Fargo Bank, N.A., as
Securities Administrator for Wachovia
Bank, National Association, as Trustee, in
trust for registered holders of Banc
of America Funding Corporation Mortgage
Pass-Through Certificates, Series
2004-C." The Distribution Account shall be
deemed to consist of ten
sub-accounts; one for each Loan Group and
each Loan Subgroup and three
sub-accounts referred to herein as the
Middle-Tier Sub Account, the Upper-Tier
Certificate Sub-Account and the Group 4
Upper-Tier Certificate Sub-Account,
respectively. Funds in the Distribution
Account shall be held in trust for the
Holders of the Certificates for the uses
and purposes set forth in this
Agreement.
Distribution Date: The 20th day of each month beginning in
December
2004 (or, if such day is not a Business
Day, the next Business Day).
Document Transfer Event: The 60th day following the day on
which
either (i) Wells Fargo Bank is no longer
the Servicer of any of the Mortgage
Loans purchased by the Seller pursuant to
the Wells Fargo Servicing Agreement or
(ii) the senior, unsecured long-term debt
rating of Wells Fargo & Company is
less than "BBB-" by Fitch Ratings.
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such
Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
a federal or state chartered depository
institution or trust company the
short-term unsecured debt obligations of
which (or, in the case of a depository
institution or trust company that is the
principal subsidiary of a holding
company, the debt obligations of such
holding company) have the highest
short-term ratings of each Rating Agency at
the time any amounts are held on
deposit therein, or (ii) an account or
accounts in a depository institution or
trust company in which such accounts are
insured by the FDIC (to the limits
established by the FDIC) and the uninsured
deposits in which accounts are
otherwise secured such that, as evidenced
by an Opinion of Counsel delivered to
the Trustee, the Securities Administrator
and to each Rating Agency, the
Certificateholders have a claim with
respect to the funds in such account or a
perfected first priority security interest
against any collateral (which shall
be limited to Permitted Investments)
securing such funds that is superior to
claims of any other depositors or creditors
of the depository institution or
trust company in which such account is
maintained, or (iii) a trust account or
accounts maintained with the trust
department of a federal or state chartered
depository institution or trust company
(including the Trustee and the
Securities Administrator), acting in its
fiduciary capacity or (iv) any other
account acceptable to each Rating Agency.
Eligible Accounts may bear interest
and may include, if otherwise qualified
under this definition, accounts
maintained with the Trustee or the
Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class 1-B-4, Class
1-B-5,
Class 1-B-6, Class 4-M-1, Class 4-M-2,
Class 4-B-1, Class 4-B-2, Class 4-CE,
Class CB-4, Class CB-5 or Class CB-6
Certificates.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums,
fire and hazard insurance premiums
and other payments as may be required to be
escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any
Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
related Servicer as Nonrecoverable
Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.12(a)(iv), exceeds
(i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
Date in the month in which such
Mortgage Loan became a Liquidated Mortgage
Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due
Date as to which interest was last paid
or for which a Periodic Advance was made
(and not reimbursed) up to the Due Date
applicable to the Distribution Date
immediately following the calendar month
during which such liquidation occurred.
Extra Principal Distribution Amount: As of any Distribution
Date,
the lesser of (x) the Monthly Excess
Interest Amount for such Distribution Date
and (y) the Overcollateralization
Deficiency for such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates
will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated
by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K: As defined in Section 3.23(a).
Fractional Interest: As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the
REMICs
consisting of (a) the right of the Offered
Group 4 Certificates to receive Cap
Carryover Amounts, (b) each Yield
Maintenance Agreement, the Reserve Account and
the beneficial interest of the Class 4-CE
Certificates with respect thereto and
(c) the obligation of the Class 4-CE
Certificates to pay Cap Carryover Amounts.
GreenPoint Servicing Agreement: The Flow Sale and Servicing
Agreement, dated as of September 1, 2004,
by and between BANA and GreenPoint
Mortgage Funding, Inc., as amended by that
certain Amendment No. 1, dated as of
October 1, 2004, by and between BANA and
GreenPoint Mortgage Funding, Inc.
Gross Margin: As to each Mortgage Loan, the fixed percentage
set
forth in the related Mortgage Note and
indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is
added to the Index on each Rate
Adjustment Date to determine (subject to
rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such
Mortgage Loan until the next Rate
Adjustment Date.
Group: Any of Group 1, Group 2, Group 3 or Group 4.
Group 1: The Group 1 Senior Certificates and the Class 1-B
Certificates.
Group 1 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 1
Mortgage Loans.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-R, Class
1-A-MR
and Class 1-A-LR Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 2
Mortgage Loans.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Senior Certificates: Class 2-A-1, Class 2-A-2 and Class
2-X-1 Certificates.
Group 3: The Group 3 Senior Certificates.
Group 3 Lower-Tier Rate: For each Distribution Date, a per
annum
rate equal to the Net WAC for the Group 3
Mortgage Loans.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Senior Certificates: Class 3-A-1 Certificates.
Group 4: The Group 4 Senior Certificates, the Class M
Certificates
and the Class 4-B Certificates.
Group 4 Cap: As of any Distribution Date and the Class M and
Class
4-B Certificates, a per annum rate equal to
the lesser of (i) 11.00% and (ii) a
per annum rate (subject to adjustment based
on the actual number of days elapsed
in the related Interest Accrual Period)
equal to the weighted average of the
Subgroup 4A Cap and the Subgroup 4B Cap
(each calculated without regard to
clause (i) of the definitions thereof),
weighted on the basis of the related
Subgroup Subordinate Amount.
Group 4 Certificates: The Group 4 Senior Certificates, the Class
M
Certificates, the Class 4-B Certificates,
the Class 4-CE Certificates, the Class
4-R Certificates and the Class 4-LR
Certificates.
Group 4 Interest Remittance Amount: As of any Distribution Date,
the
sum of the Subgroup 4A Interest Remittance
Amount and the Subgroup 4B Interest
Remittance Amount for such Distribution
Date.
Group 4 Lower-Tier Distribution Amount: As defined in Section
5.11(b).
Group 4 Lower-Tier Rate: With respect to Regular Interest
LT1AA,
Regular Interest LT1A1, Regular Interest
LT1A2, Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2,
Regular Interest LT1ZZ, Regular Interest
LT1SUB, Regular Interest LT2SUB and Regular
Interest LT1XX, the Net WAC of the
Group 4 Mortgage Loans. With respect to
Regular Interest LT1GRP, the Subgroup 4A
Cap. With respect Regular Interest LT2GRP,
the Subgroup 4B Cap.
Group 4 Lower-Tier REMIC: As defined in the Preliminary
Statement,
the segregated asset pool, the assets of
which consist of the Group 4 Mortgage
Loans, such amounts as shall from time to
time be held in respect of the Group 4
Mortgage Loans in the Distribution Account
(other than amounts held in respect
of the Group 4 Upper-Tier Certificate
Sub-Account), the insurance policies, if
any, relating to a Group 4 Mortgage Loan
and the Mortgaged Property which
secured a Group 4 Mortgage Loan and which
has been acquired by foreclosure or
deed in lieu of foreclosure.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Principal Distribution Amount: As to any Distribution
Date,
the sum of (i) the Group 4 Principal
Remittance Amount minus the
Overcollateralization Release Amount, if
any, and (ii) the Extra Principal
Distribution Amount, if any.
Group 4 Principal Remittance Amount: With respect to any
Distribution Date and Group 4 Mortgage
Loans, to the extent of funds available
therefor, the sum (less amounts available
for reimbursement to the Servicers of
Advances and expenses pursuant to the
applicable Servicing Agreement, amounts
reimbursable or payable to the Master
Servicer, Securities Administrator or
Trustee pursuant to this Agreement) of: (i)
each payment of principal on a
Mortgage Loan due on the Due Date in the
month of such Distribution Date and
received by the Servicers on or prior to
the related Determination Date, and any
Advances with respect thereto, (ii) all
Principal Prepayments received by the
applicable Servicer during the prior
calendar month, (iii) Insurance Proceeds,
Net Liquidation Proceeds and Recoveries
allocable to principal actually
collected by the applicable Servicer during
the prior calendar month, (iv) with
respect to Defective Mortgage Loans
repurchased with respect to the prior
calendar month, the portion of the
Repurchase Price allocable to principal, (v)
any Substitution Adjustment Amounts paid
during the prior calendar month and
(vi) on the Distribution Date on which the
Group 4 Mortgage Loans and related
REO Property are sold at auction in
accordance with Section 10.01 hereof, that
portion of the Termination Price in respect
of principal.
Group 4 Senior Certificates: Class 4-A-1, Class 4-A-2 and Class
4-A-3 Certificates.
Group 4 Senior Principal Distribution Amount: With respect to
any
Distribution Date, (i) before the Stepdown
Date or as to which a Trigger Event
is in effect, the lesser of (a) the
aggregate Class Certificate Balance of the
Class 4-A Certificates immediately prior to
such Distribution Date and (b) the
Group 4 Principal Distribution Amount and
(ii) on or after the Stepdown Date and
as long as a Trigger Event is not in
effect, the excess of (a) the aggregate
Class Certificate Balance of the Class 4-A
Certificates immediately prior to
such Distribution Date over (b) the lesser
of (x) the product of (i) 83.60% and
(ii) the Pool Stated Principal Balance for
Loan Group 4 as of the Due Date in
the month of such Distribution Date and (y)
the amount by which the Pool Stated
Principal Balance for Loan Group 4 as of
the Due Date in the month of such
Distribution Date exceeds the product of
(i) 1.25% and (ii) the Cut-off Date
Pool Principal Balance for Loan Group
4.
Group 4 Subordinate Balance Ratio: As of any date of
determination,
the ratio between the Uncertificated
Principal Balances of Regular Interest
LT1SUB and Regular Interest LT2SUB, equal
to the ratio between the Subgroup
Subordinate Amount for Loan Subgroup 4A and
the Subgroup Subordinate Amount for
Loan Subgroup 4B.
Group 4 Upper-Tier Certificate Sub-Account: The sub-account of
the
Distribution Account designated by the
Securities Administrator pursuant to
Section 3.09(g).
Group 4 Upper-Tier REMIC: As defined in the Preliminary
Statement,
the segregated asset pool, the assets of
which consist of the Group 4
Uncertificated Lower-Tier Interests and
such amounts as shall from time to time
be deemed to be held in the Group 4
Upper-Tier Certificate Sub-Account.
Group Subordinate Amount: With respect to any Distribution Date
and
any Shifting Interest Loan Group, the
excess of the Pool Stated Principal
Balance for such Loan Group over the
aggregate Class Certificate Balance of the
Senior Certificates of the Related Group
immediately prior to such date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact
independent of the Depositor, the Trustee, the
Securities Administrator, the Master
Servicer and the Servicers, (ii) does not
have any direct financial interest or any
material indirect financial interest
in the Depositor, the Trustee, the
Securities Administrator, the Master Servicer
or the Servicers or in an affiliate of any
of them, and (iii) is not connected
with the Depositor, the Trustee, the
Securities Administrator, the Master
Servicer or the Servicers as an officer,
employee, promoter, underwriter,
trustee, partner, director or person
performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of
the
One-Year CMT Index, the One-Year LIBOR
Index or the Six-Month LIBOR Index. The
Index applicable to each Mortgage Loan will
be indicated on the Mortgage Loan
Schedule. In the event that any such Index
is no longer available, the
applicable Servicer will select a
substitute Index in accordance with the terms
of the related Mortgage Note and in
compliance with federal and state law.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance set forth in
the Preliminary Statement.
Initial Component Balance: As to each Component, the Component
Balance set forth in the Preliminary
Statement.
Initial Notional Amount: As to each Class of Interest-Only
Certificates, the Notional Amount set forth
in the Preliminary Statement.
Initial Overcollateralization Amount: $3,492,763.10.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any related insurance policy,
including all riders and
endorsements thereto in effect, including
any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the
Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Shifting Interest Certificates, the
period from and including the first day
of the previous calendar month to but not
including the first day of the
calendar month of the current Distribution
Date. As to each Distribution Date
and each Class of Offered Group 4
Certificates, the period from and including
the Distribution Date in the prior calendar
month (or in the case of the first
Distribution Date, from the Closing Date)
through and including the day prior to
the current Distribution Date. Interest on
each Class of Shifting Interest
Certificates will be calculated on the
basis of a 360-day year consisting of
twelve 30-day months. Interest on each
Class of Offered Group 4 Certificates
will be calculated on the basis of the
actual number of days in the related
Interest Accrual Period and a 360-day
year.
Interest Carry Forward Amount: For any Class of Offered Group 4
Certificates (other than the Class 4-A-3
Certificates) and the Components and
any Distribution Date, the sum of (a) the
excess, if any, of the Accrued
Certificate Interest or Accrued Component
Interest, as the case may be, and any
Interest Carry Forward Amount for the prior
Distribution Date, over the amount
in respect of interest actually distributed
on such Class or Component on such
prior Distribution Date and (b) interest on
such excess at the applicable
Pass-Through Rate for the related Interest
Accrual Period.
Interest Distribution Amount: For any Distribution Date and
each
Class of Shifting Interest Certificates,
the sum of (i) the Accrued Certificate
Interest, subject to reduction pursuant to
Section 5.02(c) and (ii) any Class
Unpaid Interest Shortfall for such
Class.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no
distributions of principal. The Class 2-X-1
Certificates are the only Classes of
Interest-Only Certificates.
LIBOR Business Day: Any day on which banks in the London,
England
and The City of New York are open and
conducting transactions in foreign
currency and exchange.
LIBOR Determination Date: With respect to the Offered Group 4
Certificates and each Interest Accrual
Period (after the first Interest Accrual
Period), the second LIBOR Business Day
prior to the day on which such Interest
Accrual Period commences.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO
Property) that was liquidated in the
calendar month preceding the month of such
Distribution Date and as to which the
related Servicer has certified (in
accordance with the related Servicing
Agreement) that it has received all
proceeds it expects to receive in connection
with the liquidation of such Mortgage Loan
including the final disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or
complete liquidation of defaulted
Mortgage Loans, whether through trustee's
sale, foreclosure sale or otherwise or
amounts received in connection with any
condemnation or partial release of a
Mortgaged Property and any other proceeds
received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3 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 Subgroup: Any of Loan Subgroup 4A or Loan Subgroup 4B.
Loan Subgroup 4A: The Subgroup 4A Mortgage Loans.
Loan Subgroup 4B: The Subgroup 4B Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed
as a percentage, the numerator of
which is the outstanding principal balance
of the related Mortgage Loan at the
date of determination and the denominator
of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.11(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
segregated asset pool, the assets of which
consist of the Mortgage Loans (other
than the Group 4 Mortgage Loans), such
amounts as shall from time to time be
held in the Distribution Account (other
than amounts held in respect of the
Middle-Tier Sub-Account or the Upper-Tier
Certificate Sub-Account or any amounts
held in respect of the Group 4 Mortgage
Loans or in the Group 4 Upper-Tier
Certificate Sub-Account), the insurance
policies, if any, relating to a Mortgage
Loan and the Mortgaged Property which
secured a Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of
foreclosure.
Marker Rate: With respect to the Class 4-CE Certificates and
any
Distribution Date, a per annum rate equal
to two (2) times the weighted average
of the applicable Group 4 Lower-Tier Rates
for Regular Interest LT1A1, Regular
Interest LT1A2, Regular Interest LT1A3A,
Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest
LT1B2 and Regular Interest LT1ZZ, (i) with
the rate on each such Uncertificated
Group 4 Lower-Tier Interest (other than
Regular Interest LT1ZZ) subject to a cap
equal to the Pass-Through Rate of its
Corresponding Class or Component (taking
into account in determining any such
Pass-Through Rate the imposition of the
applicable Cap as described in footnote 5,
6, 10, 11 or 12 to the table in the
Preliminary Statement relating to the
Certificates) for the purposes of this
calculation and (ii) with the rate on
Regular Interest LT1ZZ subject to a cap of
zero for the purpose of this calculation;
provided, however, that for this
purpose, calculations of the Group 4
Lower-Tier Rate and the related caps with
respect to each such Uncertificated Group 4
Regular Interest (other than Regular
Interest LT1ZZ) shall be multiplied by a
fraction, the numerator of which is the
actual number of days in the Interest
Accrual Period and the denominator of
which is 30.
Master Servicer: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor
master servicer is appointed
hereunder, such successor, as master
servicer.
Master Servicer Custodial Account: The Eligible Account created
and
maintained by the Master Servicer pursuant
to Section 3.09(b) in the name of the
Master Servicer for the benefit of the
Certificateholders and designated "Wells
Fargo Bank, N.A., as Master Servicer, in
trust for the registered holders of
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series
2004-C."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net
of any losses realized since the
preceding Distribution Date from Permitted
Investments of funds in the Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in Section
3.23(c).
Master Servicer's Certificate: The monthly report required by
Section 4.01.
Master Servicing Officer: With respect to the Master Servicer,
any
officer of the Master Servicer involved in,
or responsible for, the
administration and master servicing of the
Mortgage Loans whose name appears on
a list of servicing officers furnished to
the Securities Administrator by the
Master Servicer, as such list may from time
to time be amended.
Master Servicing Transfer Costs: All reasonable costs and
expenses
incurred by the Trustee in connection with
the transfer of master servicing from
a predecessor master servicer, including,
without limitation, any costs or
expenses associated with the complete
transfer of all master servicing data and
the completion, correction or manipulation
of such master servicing data as may
be required by the Trustee to correct any
errors or insufficiencies in the
master servicing data or otherwise to
enable the Trustee to master service the
Mortgage Loans properly and
effectively.
Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount:
With
respect to any Distribution Date, the
excess of (a) accrued interest at the
Group 4 Lower-Tier Rate applicable to
Regular Interest LT1ZZ for such
Distribution Date on a balance equal to the
Uncertificated Principal Balance of
Regular Interest LT1ZZ minus the 4LT
Overcollateralized Amount, in each case for
such Distribution Date, over (b)
Uncertificated Accrued Interest on Regular
Interest LT1A1, Regular Interest LT1A2,
Regular Interest LT1A3A, Regular
Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular
Interest LT1B1 and Regular Interest LT1B2,
each subject to a cap equal to the
Pass-Through Rate of the related
Corresponding Class for the purpose of this
calculation; provided, however, that for
this purpose, calculations of the Group
4 Lower-Tier Rate and the related caps with
respect to Uncertificated Accrued
Interest on Regular Interest LT1A1, Regular
Interest LT1A2, Regular Interest
LT1A3A, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1 and Regular Interest
LT1B2 shall be multiplied by a
fraction, the numerator of which is the
actual number of days in the Interest
Accrual Period and the denominator of which
is 30.
Middle-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the
Securities Administrator pursuant to
Section 3.09(g).
Middle-Tier REMIC: As defined in the Preliminary Statement, the
segregated asset pool, the assets of which
consist of the Uncertificated
Lower-Tier Interests and such amounts as
shall from time to time be deemed to be
held in the Middle-Tier Certificate
Sub-Account.
Monthly Excess Cashflow Amount: The sum of the Monthly Excess
Interest Amount, the Overcollateralization
Release Amount and (without
duplication) any portion of the Group 4
Principal Distribution Amount remaining
after principal distributions on the
Offered Group 4 Certificates.
Monthly Excess Interest Amount: With respect to each
Distribution
Date, the amount, if any, by which the
Group 4 Interest Remittance Amount for
such Distribution Date exceeds the
aggregate amount distributed on such
Distribution Date to the Group 4
Certificates pursuant to priorities first
through eighth under Section 5.03(a).
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23(a).
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified herein,
shall give effect to any related Debt
Service Reduction and any Deficient
Valuation that affects the amount of the
monthly payment due on such Mortgage
Loan.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing
a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to the Mortgage File pursuant
to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on
the principal balance of such Mortgage
Loan, as adjusted from time to time in
accordance with the provisions of the
related Mortgage Note, which rate is (a)
prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial
Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage
Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the
applicable Index, as of the Rate
Adjustment Date applicable to such Due
Date, and the Gross Margin, rounded as
set forth in such Mortgage Note, subject to
the Periodic Cap and the Rate
Ceiling applicable to such Mortgage Loan at
any time during the life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated November 30, 2004, between
Bank of America, National
Association, as seller, and the Depositor,
as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the Master Servicer to
reflect the addition of Substitute
Mortgage Loans and the deletion of
Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred
to the Trustee as part of the Trust
Estate and from time to time subject to
this Agreement, attached hereto as
Exhibit D-1, Exhibit D-2, Exhibit D-3,
Exhibit D-4, Exhibit D-5 and Exhibit D-6
setting forth the following information
with respect to each Mortgage Loan: (i)
the Mortgage Loan identifying number; (ii)
a code indicating whether the
Mortgaged Property is owner-occupied; (iii)
the property type for each Mortgaged
Property; (iv) the original months to
maturity or the remaining months to
maturity from the Cut-off Date; (v) the
Loan-to-Value Ratio at origination; (vi)
the Mortgage Interest Rate as of the
Cut-off Date; (vii) the date on which the
first Monthly Payment was due on the
Mortgage Loan, and, if such date is not the
Due Date currently in effect, such Due
Date; (viii) the stated maturity date;
(ix) the amount of the Monthly Payment as
of the Cut-off Date; (x) the
paid-through date; (xi) the original
principal amount of the Mortgage Loan;
(xii) the principal balance of the Mortgage
Loan as of the close of business on
the Cut-off Date, after application of
payments of principal due on or before
the Cut-off Date, whether or not collected,
and after deduction of any payments
collected of scheduled principal due after
the Cut-off Date; (xiii) a code
indicating the purpose of the Mortgage
Loan; (xiv) a code indicating the
documentation style; (xv) the Appraised
Value; (xvi) the first Rate Adjustment
Date; (xvii) the Rate Ceiling; (xviii) the
Periodic Cap; (xix) the Gross Margin;
(xx) the Index; (xxi) the closing date of
such Mortgage Loan; and (xxii) whether
such Mortgage Loan is subject to a
prepayment penalty. With respect to the
Mortgage Loans in each Loan Group or Loan
Subgroup 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
Securities Administrator Fee Rate.
Net WAC: As to any Loan Group or Loan Subgroup and any
Distribution
Date, the weighted average of the Net
Mortgage Interest Rates of the Mortgage
Loans in such Loan Group or Loan Subgroup
(based on Stated Principal Balances of
the Mortgage Loans in such Loan Group or
Loan Subgroup on the Due Date in the
month preceding the month of such
Distribution Date).
Non-Supported Interest Shortfalls: As to any Distribution Date
and
(i) Loan Group 1, the amount, if any, by
which the aggregate of Prepayment
Interest Shortfalls for Loan Group 1
exceeds the aggregate Compensating Interest
received from the Servicers for the Group 1
Mortgage Loans for such Distribution
Date and (ii) the CB Crossed Loan Groups,
the amount, if any, by which the
aggregate of Prepayment Interest Shortfalls
for the CB Crossed Loan Groups
exceeds the aggregate Compensating Interest
received from the Servicers for the
Mortgage Loans in the CB Crossed Loan
Groups for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a
Mortgage Loan which has not been previously
reimbursed and which, in the good faith
judgment of the related Servicer, will
not or, in the case of a proposed Advance,
would not be ultimately recoverable
from the related Mortgagor, related
Liquidation Proceeds, or other recoveries in
respect of the related Mortgage Loan.
Notional Amount: With respect to the Class 2-X-1 Certificates
and
any date of determination, the Class 2-X-1
Notional Amount.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and the Class
1-B-1,
Class 1-B-2, Class 1-B-3, Class CB-1, Class
CB-2, Class CB-3, Class 4-M-1, Class
4-M-2, Class 4-B-1 and Class 4-B-2
Certificates.
Offered Group 4 Certificates: The Class 4-A-1, Class 4-A-2,
Class
4-A-3, Class 4-M-1, Class 4-M-2, Class
4-B-1 and Class 4-B-2 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board,
President or a Vice President and by the
Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant
Secretaries, or any other duly authorized
officer of the Depositor or the Master
Servicer, as the case may be, and delivered
to the Trustee or the Securities
Administrator, as the case may be.
One-Month LIBOR: With respect to the initial Interest Accrual
Period, 2.2075% per annum. With respect to
each Interest Accrual Period (other
than the initial Interest Accrual Period),
the rate determined by the Securities
Administrator on the related LIBOR
Determination Date on the basis of the
offered rate for one-month United States
dollar deposits, as such rate appears
on the Telerate Page 3750, as of 11:00 a.m.
(London time) on such LIBOR
Determination Date. If no such quotations
are available on a LIBOR Determination
Date, One-Month LIBOR for the related
Interest Accrual Period will be the higher
of (i) One-Month LIBOR for the previous
LIBOR Determination Date (or, in the
case of the first LIBOR Determination Date
for which the Securities
Administrator is required to determine
One-Month LIBOR, 2.2075% per annum) or
(ii) a per annum rate which the Securities
Administrator determines to be either
(a) the arithmetic mean (rounding such
arithmetic mean upwards if necessary to
the nearest whole multiple of 1/16%) of the
one-month United States dollar
lending rate that New York City banks
selected by the Securities Administrator
are quoting on the relevant LIBOR
Determination Date to the principal London
offices of at least two leading banks in
the London interbank market or (b) in
the event that the Securities Administrator
can determine no such arithmetic
mean, the lowest one-month United States
dollar lending rate that the New York
City banks selected by the Securities
Administrator are quoting on such LIBOR
Determination Date to leading European
banks.
One-Year CMT Index: A rate per annum that is defined to be the
weekly average yield on United States
Treasury Securities adjusted to a constant
maturity of one year, as made available by
the Federal Reserve Board, published
in Federal Reserve Statistical Release H.15
(519) and most recently available as
of the date 45 days before the applicable
Rate Adjustment Date.
One-Year LIBOR Index: A rate per annum that is defined to be
the
average of interbank offered rates for
one-year U.S. dollar-denominated deposits
in the London market, as published in The
Wall Street Journal and most recently
available either (i) as of the first
Business Day in the month preceding the
month of the applicable Rate Adjustment
Date or (ii) up to the date 45 days
before the applicable Rate Adjustment
Date.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the
Trustee, or acceptable to the
Securities Administrator if such opinion is
delivered to the Securities
Administrator, who may be counsel for the
Depositor or the Master Servicer,
except that any opinion of counsel relating
to the qualification of the Trust
Estate as five separate REMICs or
compliance with the REMIC Provisions must be
an opinion of Independent counsel.
Original Class 1-B Certificate Balance: $1,531,631.00.
Original Class CB Certificate Balance: $11,287,625.00.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the
corresponding percentage described
below, as of the Closing Date:
Class 1-B-1 1.85%
Class 1-B-2 1.35%
Class 1-B-3 0.85%
Class 1-B-4 0.30%
Class 1-B-5 0.15%
Class 1-B-6 0.00%
Class CB-1
3.20%
Class CB-2
2.10%
Class CB-3
1.40%
Class CB-4
0.80%
Class CB-5
0.35%
Class CB-6
0.00%
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal
Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage
Loan prior to such Due Date and which
was not purchased from the Trust prior to
such Due Date pursuant to Section 2.02
or Section 3.16(f).
Overcollateralization Amount: As of any Distribution Date, the
excess, if any, of (x) the Pool Stated
Principal Balance of Loan Group 4 as of
the Due Date in the month of such
Distribution Date over (y) the aggregate Class
Certificate Balance of all Classes of
Offered Group 4 Certificates (after taking
into account all distributions of principal
on such Distribution Date and the
increase of any Class Certificate Balance
of a Class of Offered Group 4
Certificates as a result of
Recoveries).
Overcollateralization Deficiency: As of any Distribution Date,
the
excess, if any, of (x) the Targeted
Overcollateralization Amount for such
Distribution Date over (y) the
Overcollateralization Amount for such
Distribution Date, calculated for this
purpose after taking into account the
reduction on such Distribution Date of the
Class Certificate Balances of all
Classes of Offered Group 4 Certificates
resulting from the distribution of the
Group 4 Principal Distribution Amount (but
not the Extra Principal Distribution
Amount) on such Distribution Date, but
prior to taking into account any Applied
Realized Loss Amounts, Class 4-A-3A Applied
Realized Loss Amounts or Class
4-A-3B Applied Realized Loss Amounts on
such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date on or after the Stepdown
Date on which a Trigger Event is not
in effect, the lesser of (x) the Group 4
Principal Remittance Amount for such
Distribution Date and (y) the excess, if
any, of (i) the Overcollateralization
Amount for such Distribution Date, assuming
that 100% of the Group 4 Principal
Remittance Amount is applied as a principal
payment on the Offered Group 4
Certificates on such Distribution Date,
over (ii) the Targeted
Overcollateralization Amount for such
Distribution Date. With respect to any
Distribution Date on which a Trigger Event
is in effect, the
Overcollateralization Release Amount will
be zero.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any
interest in such Certificate as the
Holder thereof and any other interest
therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth
or described in the Preliminary
Statement.
With respect to the Class 4-CE Certificates and any
Distribution
Date, a per annum rate equal to the
percentage equivalent of a fraction, the
numerator of which is the sum of the
amounts calculated pursuant to clauses (A)
through (J) below, and the denominator of
which is the aggregate of the
Uncertificated Principal Balances of
Regular Interest LT1AA, Regular Interest
LT1A1, Regular Interest LT1A2, Regular
Interest LT1A3A, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular Interest
LT1M2, Regular Interest LT1B1, Regular
Interest LT1B2 and Regular Interest LT1ZZ.
For purposes of calculating the
Pass-Through Rate for the Class 4-CE
Certificates, the numerator is equal to the
sum of the following components:
(A) the Group 4 Lower-Tier Rate for Regular Interest LT1AA minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1AA;
(B) the Group 4 Lower-Tier Rate for Regular Interest LT1A1 minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1A1;
(C) the Group 4 Lower-Tier Rate for Regular Interest LT1A2 minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1A2;
(D) the Group 4 Lower-Tier Rate for Regular Interest LT1A3A
minus
the Marker Rate, applied to an amount equal
to the Uncertificated Principal
Balance of Regular Interest LT1A3A;
(E) the Group 4 Lower-Tier Rate for Regular Interest LT1A3B
minus
the Marker Rate, applied to an amount equal
to the Uncertificated Principal
Balance of Regular Interest LT1A3B;
(F) the Group 4
Lower-Tier Rate for Regular Interest LT1M1 minus the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1M1;
(G) the Group 4 Lower-Tier Rate for Regular Interest LT1M2 minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1M2;
(H) the Group 4 Lower-Tier Rate for Regular Interest LT1B1 minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1B1;
(I) the Group 4 Lower-Tier Rate for Regular Interest LT1B2 minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1B2;
(J) the Group 4 Lower-Tier Rate for Regular Interest LT1ZZ minus
the
Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance
of Regular Interest LT1ZZ.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate (other than the
Class
4-CE, Class 4-R and Class 4-LR
Certificates), the percentage obtained by
dividing the initial Certificate Balance of
such Certificate (or the initial
notional amount for the Interest-Only
Certificates) by the Initial Class
Certificate Balance or Initial Notional
Amount, as applicable, of the Class of
which such Certificate is a part. With
respect to the Class 4-CE, Class 4-R and
Class 4-LR Certificates, the portion of the
Class evidenced thereby, expressed
as a percentage, as stated on the face of
such Certificate; provided, however,
that the sum of all such percentages for
each such Class totals 100%. With
respect to the Class 4-R and Class 4-LR
Certificates, 100%.
Periodic Advance: With respect to each Servicer, shall have the
meaning given to the term "Monthly Advance"
in the applicable Servicing
Agreement.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate
for each Rate Adjustment Date specified
in the applicable Mortgage Note and
designated as such in the Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United States, FHLMC, FNMA or any agency or
instrumentality of the United States
when such obligations are backed by the
full faith and credit of the United
States; provided that such obligations of
FHLMC or FNMA shall be limited to
senior debt obligations and mortgage
participation certificates other than
investments in mortgage-backed or mortgage
participation securities with yields
evidencing extreme sensitivity to the rate
of principal payments on the
underlying mortgages, which shall not
constitute Permitted Investments
hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing not more than one month from the
date of acquisition thereof with a
corporation incorporated under the laws of
the United States or any state
thereof rated not lower than "P-1" by
Moody's and "A-1" by S&P;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits and bankers' acceptances (which
shall each have an original maturity of
not more than 90 days and, in the case of
bankers' acceptances, shall in no
event have an original maturity of more
than 365 days or a remaining maturity of
more than 30 days) denominated in United
States dollars of any U.S. depository
institution or trust company incorporated
under the laws of the United States or
any state thereof, rated not lower than
"P-1" by Moody's and "A-1" by S&P;
(iv) commercial paper (having original maturities of not more
than
365 days) of any corporation incorporated
under the laws of the United States or
any state thereof which is rated not lower
than "P-1" by Moody's and "A-1" by
S&P;
(v) investments in money market funds (including funds of the
Trustee, the Securities Administrator or
their affiliates, or funds for which an
affiliate of the Trustee or the Securities
Administrator acts as advisor, as
well as funds for which the Trustee and its
affiliates or the Securities
Administrator and its affiliates may
receive compensation) rated either "Aaa" by
Moody's and "AAAm G" by S&P or
otherwise approved in writing by each Rating
Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating Agency and, as evidenced by an
Opinion of Counsel obtained by the Master
Servicer and addressed to the Depositor and
the Securities Administrator, will
not affect the qualification of the Trust
Estate as five separate REMICs;
provided, however, that no instrument shall
be a Permitted Investment if it
represents either (a) the right to receive
only interest payments with respect
to the underlying debt instrument or (b)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision
thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a foreign government,
international organization or any agency or
instrumentality of either of the
foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by
Section 511 of the Code on unrelated
business taxable income) (except certain
farmers' cooperatives described in Code
Section 521), (iv) rural electric and
telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with
respect to whom the income on a
Residual Certificate is allocable to a
foreign permanent establishment or fixed
base, within the meaning of an applicable
income tax treaty, of such Person or
any other U.S. Person, and (vi) any other
Person so designated by the Master
Servicer based on an Opinion of Counsel to
the effect that any transfer to such
Person may cause the Trust or any other
Holder of a Residual Certificate to
incur tax liability that would not be
imposed other than on account of such
transfer. The terms "United States,"
"State" and "international organization"
shall have the meanings set forth in Code
Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-MR, Class
1-A-LR,
Class 1-B-4, Class 1-B-5, Class 1-B-6,
Class 4-CE, Class 4-R, Class 4-LR, Class
CB-4, Class CB-5 and Class CB-6
Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and
Shifting
Interest Loan Group, the excess of (a) the
sum of (i) the aggregate of (A) the
interest portion of any Monthly Payment on
a Mortgage Loan in such Loan Group
(net of the Servicing Fee and the
Securities Administrator Fee) and the
principal portion of any Monthly Payment on
a Mortgage Loan in such Loan Group
due on the Due Date in the calendar month
in which such Distribution Date occurs
and which is received prior to the related
Determination Date and (B) all
Periodic Advances made by a Servicer (or
the Master Servicer or the Trustee, as
applicable) in respect of such Loan Group
and payments of Compensating Interest
allocable to such Loan Group in respect of
such Distribution Date deposited to
the Master Servicer Custodial Account
pursuant to Section 3.09(d)(vi); (ii) all
Liquidation Proceeds received on the
Mortgage Loans in such Loan Group during
the preceding calendar month and deposited
to the Master Servicer Custodial
Account pursuant to Section 3.09(d)(iii);
(iii) all Principal Prepayments
received on the Mortgage Loans in such Loan
Group during the calendar month
preceding the month of such Distribution
Date and deposited to the Master
Servicer Custodial Account pursuant to
Section 3.09(d)(i); (iv) in connection
with Defective Mortgage Loans in such Loan
Group, the aggregate of the
Repurchase Prices and Substitution
Adjustment Amounts received during the
calendar month preceding the month of such
Distribution Date and deposited to
the Master Servicer Custodial Account
pursuant to Section 3.09(d)(vii); (v) any
other amounts in the Master Servicer
Custodial Account deposited therein
pursuant to Sections 3.09(d)(iv), (v), (ix)
and (x) in respect of such
Distribution Date and such Loan Group; (vi)
any Reimbursement Amount required to
be included pursuant to Section 5.02(a) and
(vii) any Recovery in respect of
such Distribution Date; over (b) any
amounts permitted to be withdrawn from the
Master Servicer Custodial Account pursuant
to clauses (i) through (viii),
inclusive, of Section 3.12(a) in respect of
such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group or Loan Subgroup, the aggregate
Stated Principal Balances of all Mortgage
Loans in such Loan Group or Loan Subgroup
that were Outstanding Mortgage Loans
at the close of business on the Due Date in
the month preceding the month in
which such Distribution Date occurs.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal
Prepayment received during the calendar
month preceding such Distribution Date, the
amount, if any, by which one month's
interest at the related Mortgage Interest
Rate (net of the Servicing Fee Rate)
on such Principal Prepayment exceeds the
amount of interest paid in connection
with such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary
mortgage
guaranty insurance or any replacement
policy therefor with respect to any
Mortgage Loan, in each case issued by an
insurer acceptable to FNMA or FHLMC.
Principal Amount: As to any Distribution Date and Loan Group
(other
than Loan Group 4), the sum of (i) the sum
of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan
in such Loan Group on the related Due
Date, (b) the Stated Principal Balance, as
of the date of repurchase, of each
Mortgage Loan in such Loan Group that was
repurchased by the Depositor, the
Seller or the related Originator as of such
Distribution Date, (c) any
Substitution Adjustment Amount in
connection with a Defective Mortgage Loan in
such Loan Group received with respect to
such Distribution Date, (d) any
Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated
Mortgage Loans received by a
Servicer during the calendar month
preceding the month of such Distribution
Date, (e) with respect to each Mortgage
Loan in such Loan Group that became a
Liquidated Mortgage Loan during the
calendar month preceding the month of such
Distribution Date, the amount of
Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received
by a Servicer with respect to such
Mortgage Loan during the calendar month
preceding the month of such Distribution
Date and (f) all Principal Prepayments on
the Mortgage Loans in such Loan Group
received by a Servicer during the calendar
month preceding the month of such
Distribution Date; and (ii) any Recovery
related to such Loan Group for such
Distribution Date.
Principal Prepayment: Any payment or other recovery of principal
on
a Mortgage Loan (other than Liquidation
Proceeds) which is received in advance
of its scheduled Due Date and is not
accompanied by an amount of interest
representing scheduled interest due on any
date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Private Certificates: The Class 1-B-4, Class 1-B-5, Class
1-B-6,
Class CB-4, Class CB-5, Class CB-6, Class
4-CE, Class 4-R and Class 4-LR
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Class
1-B Certificates or Class CB Certificates
that is not a Restricted Class, the
portion of the Subordinate Principal
Distribution Amount or Amounts allocable to
such Class, equal to the product of the
Subordinate Principal Distribution
Amount or Amounts for such Distribution
Date and a fraction, the numerator of
which is the related Class Certificate
Balance thereof and the denominator of
which is the aggregate Class Certificate
Balance of the Class 1-B Certificates
or Class CB Certificates, as applicable,
that are not Restricted Classes. The
Pro Rata Share of a Restricted Class shall
be 0%. The Pro Rata Share of a Class
of Class 1-B Certificates or Class CB
Certificates may be computed for each of
clause (i) and clause (ii) of the
definition of "Subordinate Principal
Distribution Amount" in the event the
Restricted Classes differ with respect to
each clause.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which date an adjustment to the Mortgage
Interest Rate of such Mortgage Loan
becomes effective under the related
Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note and
indicated on the Mortgage Loan Schedule.
Rating Agency: Each of Moody's and S&P. If either such
organization
or a successor is no longer in existence,
"Rating Agency" shall be such
nationally recognized statistical rating
organization, or other comparable
Person, as is designated by the Depositor,
notice of which designation shall be
given to the Trustee, the Master Servicer
and the Securities Administrator.
References herein to a given rating or
rating category of a Rating Agency shall
mean such rating category without giving
effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation,
equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as
of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest
Rate from the Due Date as to which
interest was last paid or advanced (and not
reimbursed) to Certificateholders up
to the Due Date in the month in which
Liquidation Proceeds are required to be
distributed on the Stated Principal Balance
of such Liquidated Mortgage Loan
from time to time, minus (iii) the
Liquidation Proceeds, if any, received during
the month in which such liquidation
occurred, to the extent applied as
recoveries of interest at the Net Mortgage
Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to
each Mortgage Loan that has become the
subject of a Deficient Valuation, if the
principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and
the principal balance of the Mortgage Loan
as reduced by the Deficient
Valuation. With respect to each Mortgage
Loan that has become the subject of a
Debt Service Reduction and any Distribution
Date, the amount, if any, by which
the principal portion of the related
Monthly Payment has been reduced.
Realized Loss Amortization Amount: Any of the Class 4-A-3A
Realized
Loss Amortization Amount, the Class 4-A-3B
Realized Loss Amortization Amount,
the Class 4-M-1 Realized Loss Amortization
Amount, the Class 4-M-2 Realized Loss
Amortization Amount, the Class 4-B-1
Realized Loss Amortization Amount or the
Class 4-B-2 Realized Loss Amortization
Amount.
Record Date: With respect to all of the Certificates (other than
the
Class 4-A, Class M and Class 4-B
Certificates), the last Business Day of the
month immediately preceding the month in
which the related Distribution Date
occurs and with respect to the Class 4-A,
Class M and Class 4-B Certificates,
the Business Day immediately preceding such
Distribution Date; provided,
however, that if any such Class 4-A, Class
M and Class 4-B Certificates becomes
a Definitive Certificate, the Record Date
for such Certificate shall be the last
Business Day of the month immediately
preceding the month in which the related
Distribution Date occurs.
Recovery: As to any Distribution Date and Loan Group or Loan
Subgroup, the sum of all amounts received
during the calendar month preceding
the month of such Distribution Date on each
Mortgage Loan in such Loan Group or
Loan Subgroup subsequent to such Mortgage
Loan being determined to be a
Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Regular Interest LT1AA: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1AA shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1A1: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1A1 shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1A2: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1A2 shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1A3A: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1A3A shall accrue interest at
the applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1A3B: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1A3B shall accrue interest at
the applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1M1: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1M1 shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1M2: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1M2 shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1B1: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1B1 shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1B2: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1B2 shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1GRP: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1GRP shall accrue interest at
the applicable Group 4 Lower-Tier Rate
in effect from time to time, and shall be
entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1SUB: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1SUB shall accrue interest at
the applicable Group 4 Lower-Tier Rate
in effect from time to time, and shall be
entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1XX: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1XX shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT1ZZ: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT1ZZ shall accrue interest at the
applicable Group 4 Lower-Tier Rate
and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
Preliminary Statement hereto.
Regular Interest
LT2GRP: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT2GRP shall accrue interest at
the applicable Group 4 Lower-Tier Rate
in effect from time to time, and shall be
entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Regular Interest LT2SUB: One of the separate non-certificated
beneficial ownership interests in the Group
4 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the
Group 4 Lower-Tier REMIC. Regular
Interest LT2SUB shall accrue interest at
the applicable Group 4 Lower-Tier Rate
in effect from time to time, and shall be
entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
definition of Uncertificated Group 4
Lower-Tier Interest.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1 and the Class 1-B
Certificates, for Loan Group 2, Group 2,
for Loan Group 3, Group 3, for Loan
Group 4, Group 4 and for the CB Crossed
Loan Groups, Group 2, Group 3 and the
Class CB Certificates.
Related Loan Group: For Group 1, Loan Group 1, for Group 2,
Loan
Group 2, for Group 3, Loan Group 3, for
Group 4, Loan Group 4, and for the Class
CB Certificates, Loan Group 2 and Loan
Group 3.
Related Loan Subgroup: For Subgroup 4A, Loan Subgroup 4A, and
for
Subgroup 4B, Loan Subgroup 4B.
Related Subgroup: For Loan Subgroup 4A, Subgroup 4A, and for
Loan
Subgroup 4B, Subgroup 4B.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act or
comparable state legislation, the amount,
if any, by which (i) interest collectible
on such Mortgage Loan for the most
recently ended calendar month is less than
(ii) interest accrued pursuant to the
terms of the Mortgage Note on the same
principal amount and for the same period
as the interest collectible on such
Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code. "Each
REMIC" or "any REMIC" means each of
the Lower-Tier REMIC, the Middle-Tier
REMIC, the Upper-Tier REMIC, the Group 4
Lower-Tier REMIC and the Group 4 Upper-Tier
REMIC.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is
defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment
conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1
of the Code, and related provisions,
and regulations promulgated thereunder, as
the foregoing may be in effect from
time to time, as well as provisions of
applicable state laws.
REO Property: A Mortgaged Property acquired by a Servicer on
behalf
of the Trust through foreclosure or
deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased
on
any date pursuant to Section 2.02, an
amount equal to (a) in the case of the
Seller, the sum of (i) the unpaid principal
balance thereof and (ii) the unpaid
accrued interest thereon at the applicable
Mortgage Interest Rate from the Due
Date to which interest was last paid by the
Mortgagor to the first day of the
month following the month in which such
Mortgage Loan became eligible to be
repurchased and (b) in the case of a
Servicer, the sum of (i) the Stated
Principal Balance of the Mortgage Loan,
(ii) interest on such Stated Principal
Balance at the Mortgage Interest Rate from
the date on which interest has last
been paid and distributed through the last
day of the month in which such
repurchase takes place and (iii) any costs
and damages incurred by the Trust in
connection with any violation by such
repurchased Mortgage Loan of any predatory
or abusive lending law, less (x) amounts
received or advanced in respect of such
repurchased Mortgage Loan which are being
held in the applicable Servicer
Custodial Account for distribution in the
month of repurchase and (y) if such
Servicer is servicing such Mortgage Loan
under the related Servicing Agreement,
the Servicing Fee Rate for such Mortgage
Loan.
Request for Release: The Request for Release submitted by a
Servicer
to the Trustee, 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 the
applicable Servicing Agreement in respect
of such Mortgage Loan.
Reserve Account: The trust account created and maintained by
the
Securities Administrator pursuant to
Section 3.09(h) which shall be entitled the
"Reserve Account, Wells Fargo Bank, N.A.,
as Securities Administrator, in trust
for registered Holders of the Offered Group
4 Certificates of the Banc of
America Funding Trust, Series 2004-C" and
which must be an Eligible Account.
Amounts on deposit in the Reserve Account
shall not be invested. The Reserve
Account shall not be an asset of any REMIC
formed under this Agreement.
Residual Certificates: The Class 1-A-R, Class 1-A-MR, Class
1-A-LR,
Class 4-R and Class 4-LR Certificates.
Responsible Officer: When used with respect to the Trustee or
the
Securities Administrator, any officer of
the Corporate Trust Department of the
Trustee or the Securities Administrator, as
applicable, including any Senior
Vice President, any Vice President, any
Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant
Trust Officer, or any other officer of
the Trustee or Securities Administrator, as
applicable, customarily performing
functions similar to those performed by any
of the above designated officers and
having responsibility for the
administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., or any successor thereto.
Securities Administrator: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor
securities administrator is appointed
hereunder, such successor, as securities
administrator.
Securities Administrator Fee: As to any Distribution Date and
Loan
Group, an amount equal to one-twelfth of
the Securities Administrator Fee Rate
multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans in
the Related Loan Group as of the close of
business on the Due Date in the month
preceding the month in which such
Distribution Date occurs.
Securities Administrator Fee Rate: With respect to each
Mortgage
Loan, 0.015% per annum.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest,
as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A Certificates and the Class
2-X-1
Certificates.
Senior Credit Support Depletion Date: As to Loan Group 1, the
date
on which the aggregate Class Certificate
Balance of the Class 1-B Certificates
is reduced to zero and as to each of the CB
Crossed Groups, the date on which
the aggregate Class Certificate Balance of
the Class CB Certificates is reduced
to zero.
Senior Enhancement Percentage: For any Distribution Date, the
percentage obtained by dividing (x) the sum
of (i) the aggregate Class
Certificate Balance of the Class M and
Class 4-B Certificates before taking into
account the distribution of the Group 4
Principal Distribution Amount on such
Distribution Date and (ii) the
Overcollateralization Amount as of the prior
Distribution Date by (y) the aggregate
Stated Principal Balance of Loan Group 4
as of the due date in the month of such
Distribution Date.
Senior Specified Enhancement Percentage: On any date of
determination thereof, 16.40%.
Senior Percentage: With respect to any Distribution Date and
each
Shifting Interest Loan Group, the
percentage, carried to at least six places
rounded up, obtained by dividing the
aggregate Class Certificate Balance of the
Senior Certificates of the Related Group
immediately prior to such Distribution
Date by the Pool Stated Principal Balance
of such Loan Group for such
Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group 1 during the five years beginning on
the first Distribution Date, 100%.
The Senior Prepayment Percentage for any
Distribution Date and Loan Group 1
occurring on or after the fifth year
anniversary of the first Distribution Date
will, except as provided herein, be as
follows: for any Distribution Date in the
first year thereafter, the Senior
Percentage for Loan Group 1 plus 70% of the
Subordinate Percentage for Loan Group 1 for
such Distribution Date; for any
Distribution Date in the second year
thereafter, the Senior Percentage for Loan
Group 1 plus 60% of the Subordinate
Percentage for Loan Group 1 for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage for Loan Group 1 plus 40%
of the Subordinate Percentage for
Loan Group 1 for such Distribution Date;
for any Distribution Date in the fourth
year thereafter, the Senior Percentage for
Loan Group 1 plus 20% of the
Subordinate Percentage for Loan Group 1 for
such Distribution Date; and for any
Distribution Date in the fifth or later
years thereafter, the Senior Percentage
for Loan Group 1 for such Distribution
Date. For each CB Crossed Loan Group
during the seven years beginning on the
first Distribution Date, 100%. The
Senior Prepayment Percentage for any
Distribution Date and each CB Crossed Loan
Group occurring on or after the seventh
year anniversary of the first
Distribution Date will, except as provided
herein, be as follows: for any
Distribution Date in the first year
thereafter, the Senior Percentage for such
CB Crossed Loan Group plus 70% of the
Subordinate Percentage for such CB Crossed
Loan Group for such Distribution Date; for
any Distribution Date in the second
year thereafter, the Senior Percentage for
such CB Crossed Loan Group plus 60%
of the Subordinate Percentage for such CB
Crossed Loan Group for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage for such CB Crossed Loan
Group plus 40% of the Subordinate
Percentage for such CB Crossed Loan Group
for such Distribution Date; for any
Distribution Date in the fourth year
thereafter, the Senior Percentage for such
CB Crossed Loan Group plus 20% of the
Subordinate Percentage for such CB Crossed
Loan Group for such Distribution Date; and
for any Distribution Date in the
fifth or later years thereafter, the Senior
Percentage for such CB Crossed Loan
Group for such Distribution Date. If,
however, on any of the foregoing
Distribution Dates (i)(a) the Senior
Percentage for Loan Group 1 exceeds the
initial Senior Percentage for Loan Group 1,
the Senior Prepayment Percentage for
Loan Group 1 for such Distribution Date
will once again equal 100% or (b) the CB
Crossed Loan Group Senior Percentage
exceeds the initial CB Crossed Loan Group
Senior Percentage, the Senior Prepayment
Percentage for the CB Crossed Loan
Groups for such Distribution Date will once
again equal 100%, (ii)(a) before the
Distribution Date occurring in December
2007, the Subordinate Percentage for
Loan Group 1 for such Distribution Date is
greater than or equal to twice the
initial Subordinate Percentage for Loan
Group 1, the Senior Prepayment
Percentage for Loan Group 1 for such
Distribution Date will equal the Senior
Percentage for Loan Group 1 plus 50% of the
Subordinate Percentage for Loan
Group 1 or (b) before the Distribution Date
occurring in December 2007, the CB
Crossed Loan Group Subordinate Percentage
for such Distribution Date is greater
than or equal to twice the initial CB
Crossed Loan Group Subordinate Percentage,
the Senior Prepayment Percentage each CB
Crossed Loan Group for such
Distribution Date will equal the Senior
Percentage for such CB Crossed Loan
Group plus 50% of the Subordinate
Percentage for such CB Crossed Loan Group or
(iii)(a) on or after the Distribution Date
in December 2007, the Subordinate
Percentage for Loan Group 1 for such
Distribution Date is greater than or equal
to twice the initial Subordinate Percentage
for Loan Group 1, the Senior
Prepayment Percentage for Loan Group 1 for
such Distribution Date will equal the
Senior Percentage for Loan Group 1 or (b)
on or after the Distribution Date in
December 2007, the CB Crossed Loan Group
Subordinate Percentage for such
Distribution Date is greater than or equal
to twice the initial CB Crossed Loan
Group Subordinate Percentage, the Senior
Prepayment Percentage for each CB
Crossed Loan Group for such Distribution
Date will equal the Senior Percentage
for such CB Crossed Loan Group.
Notwithstanding the foregoing, no decrease in
the share of the applicable Subordinate
Percentage (for calculating the
applicable Senior Prepayment Percentage for
any Loan Group) will occur and the
Senior Prepayment Percentage for all Loan
Groups will be calculated without
regard to clause (ii) or (iii) in the
preceding sentence unless both of the
Senior Step Down Conditions are
satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group (other than Loan Group 4),
the sum of (i) the Senior Percentage
for such Loan Group of the amounts
described in clauses (i)(a) through (d) of
the definition of "Principal Amount" for
such Distribution Date and Loan Group
and (ii) the Senior Prepayment Percentage
for such Loan Group of the amounts
described in clauses (i)(e) and (f) and the
amount described in clause (ii) of
the definition of "Principal Amount" for
such Distribution Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and
Loan
Group 1 as to which any decrease in the
Senior Prepayment Percentage for Loan
Group 1 applies, (i) the outstanding
principal balance of all Mortgage Loans in
such Loan Group (including, for this
purpose, any Mortgage Loans in foreclosure,
any REO Property and any Mortgage Loan for
which the Mortgagor has filed for
bankruptcy after the Closing Date)
delinquent 60 days or more (averaged over the
preceding six-month period), as a
percentage of the aggregate Class Certificate
Balance of the Class 1-B Certificates, is
not equal to or greater than 50% or
(ii) cumulative Realized Losses with
respect to the Mortgage Loans in such Loan
Group as of the applicable Distribution
Date do not exceed the percentages of
the Original Class 1-B Certificate Balance
set forth below:
`
Percentage of
`
Original Class 1-B
Distribution Date Occurring
Certificate Balance
-----------------------------------
-------------------
December 2004 through November 2007
20%
December 2007 through November 2010
30%
December 2010 through November 2011
35%
December 2011 through November 2012
40%
December 2012 through November 2013
45%
December 2013 and thereafter
50%
As of any Distribution Date and a CB Crossed Loan Group as to
which
any decrease in the Senior Prepayment
Percentage for any CB Crossed Loan Group
applies, (i) the outstanding principal
balance of all Mortgage Loans in such
Loan Groups (including, for this purpose,
any Mortgage Loans in foreclosure, any
REO Property and any Mortgage Loan for
which the Mortgagor has filed for
bankruptcy after the Closing Date)
delinquent 60 days or more (averaged over the
preceding six-month period), as a
percentage of the aggregate Class Certificate
Balance of the Class CB Certificates, is
not equal to or greater than 50% or
(ii) cumulative Realized Losses with
respect to the Mortgage Loans in such Loan
Groups as of the applicable Distribution
Date do not exceed the percentages of
the Original Class CB Certificate Balance
set forth below:
`
Percentage of
`
Original Class CB
Distribution Date Occurring
Certificate Balance
-----------------------------------
-------------------
December 2004 through November 2007
20%
December 2007 through November 2012
30%
December 2012 through November 2013
35%
December 2013 through November 2014
40%
December 2014 through November 2015
45%
December 2015 and thereafter
50%
Servicer: Any of BANA, Countrywide Home Loans Servicing LP,
GreenPoint Mortgage Funding, Inc. and Wells
Fargo Bank, each in their capacity
as servicer of the Mortgage Loans, or any
successor servicer appointed as herein
provided.
Servicer Custodial Accounts: The separate accounts created and
maintained by each of the Servicers
pursuant to the applicable Servicing
Agreement.
Servicer Remittance Date: With respect to each Servicer, shall
have
the meaning given to the term "Remittance
Date" in the applicable Servicing
Agreement.
Servicing Advance: With respect to each Servicer, shall have
the
meaning given to the term "Servicing
Advances" in the applicable Servicing
Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement,
Countrywide Servicing Agreement, GreenPoint
Servicing Agreement and the Wells
Fargo Servicing Agreement.
Servicing Fee: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as
defined
in the applicable Servicing Agreement.
Servicing Officer: With respect to each Servicer, as defined in
the
related Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of
the
Master Servicer or the Trustee, as
applicable, related to any termination of a
Servicer, appointment of a successor
Servicer or the transfer and assumption of
servicing by the Master Servicer or the
Trustee, as applicable, with respect to
any Servicing Agreement (including, without
limitation, (i) all legal costs and
expenses and all due diligence costs and
expenses associated with an evaluation
of the potential termination of the
Servicer as a result of an event of default
by such Servicer and (ii) any costs or
expenses associated with the complete
transfer of all servicing data and the
completion, correction or manipulation of
such servicing data as may be required by
the Master Servicer or the Trustee, as
applicable, to correct any errors or
insufficiencies in the servicing data or
otherwise to enable the Master Servicer or
the Trustee, as applicable, to
service the Mortgage Loans properly and
effectively).
Shifting Interest Certificates: Any of the Group 1
Certificates,
Group 2 Certificates and Group 3
Certificates.
Shifting Interest Group: Any of Group 1, Group 2 or Group 3.
Shifting Interest Loan Group: Any of Loan Group 1, Loan Group 2
and
Loan Group 3.
Similar Law: As defined in Section 6.02(e).
Six-Month LIBOR Index: A rate per annum that is defined to be
the
arithmetic mean of the interbank offered
rates for six month U.S.
dollar-denominated deposits in the London
market, as published in The Wall
Street Journal and most recently available
either (i) as of the first Business
Day in the month preceding the month of the
applicable Rate Adjustment Date or
(ii) up to 45 days before the applicable
Rate Adjustment Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage
Loan as of such date as specified in
the amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason of any
moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments
and Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date
and irrespective of any delinquency in
payment by the related Mortgagor, and
after giving effect to any Deficient
Valuation.
Stepdown Date: The earlier to occur of (i) the Distribution Date
on
which the aggregate Class Certificate
Balance of the Group 4 Senior Certificates
is reduced to zero and (ii) the later to
occur of (x) the Distribution Date in
December 2007 and (y) the Distribution Date
on which the Senior Enhancement
Percentage is greater than or equal to the
Senior Specified Enhancement
Percentage.
Subgroup: Any of Subgroup 4A or Subgroup 4B.
Subgroup 4A: The Class 4-A-1 Certificates and the Class 4-A-3A
Component.
Subgroup 4A Cap: As of any Distribution Date and the Class
4-A-1
Certificates and the Class 4-A-3A
Component, a per annum rate equal to the
lesser of (i) 11.00% and (ii) the Net WAC
for the Subgroup 4A Mortgage Loans
(subject to adjustment based on the actual
number of days elapsed in the related
Interest Accrual Period).
Subgroup 4A Interest Remittance Amount: As of any Distribution
Date,
the sum, without duplication, of (i) all
interest due and collected or advanced
with respect to the payments due on the
Subgroup 4A Mortgage Loans on the Due
Date in the calendar month in which such
Distribution Date occurs and received
by the Servicers on or prior to the
Determination Date for such Distribution
Date (less the Servicing Fees and
Securities Administrator Fees for such
Mortgage Loans, amounts available for
reimbursement of Advances pursuant to the
applicable Servicing Agreement or this
Agreement and expenses and indemnities
reimbursable pursuant to this Agreement or
the Servicing Agreements), (ii) all
Compensating Interest paid by the Servicers
for such Distribution Date with
respect to the Subgroup 4A Mortgage Loans,
(iii) the portion of any payment in
connection with any Principal Prepayment,
substitution, Repurchase Price,
Insurance Proceeds or Net Liquidation
Proceeds relating to interest with respect
to such Mortgage Loans received during the
prior calendar month, (iv) on the
Distribution Date on which the Subgroup 4A
Mortgage Loans and related REO
Property are sold at auction in accordance
with Section 10.01 hereof, that
portion of the Termination Price in respect
of interest and (v) any
Reimbursement Amount relating to the
Subgroup 4A Mortgage Loans received during
the prior calendar month.
Subgroup 4A Mortgage
Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Subgroup 4A Principal Percentage: With respect to any
Distribution
Date and the Class 4-A-1 Certificates and
the Class 4-A-3A Component, the
percentage equivalent of a fraction, the
numerator of which is the portion of
the Group 4 Principal Remittance Amount for
such Distribution Date allocable to
the Subgroup 4A Mortgage Loans and the
denominator of which is the Group 4
Principal Remittance Amount for such
Distribution Date.
Subgroup 4B: The Class 4-A-2 Certificates and the Class 4-A-3B
Component.
Subgroup 4B Cap: As of any Distribution Date and the Class
4-A-2
Certificates and the Class 4-A-3B
Component, a per annum rate equal to the
lesser of (i) 11.00% and (ii) the Net WAC
for the Subgroup 4B Mortgage Loans
(subject to adjustment based on the actual
number of days elapsed in the related
Interest Accrual Period).
Subgroup 4B Interest Remittance Amount: As of any Distribution
Date,
the sum, without duplication, of (i) all
interest due and collected or advanced
with respect to the payments due on the
Subgroup 4B Mortgage Loans on the Due
Date in the calendar month in which such
Distribution Date occurs and received
by the Servicers on or prior to the
Determination Date for such Distribution
Date (less the Servicing Fees and
Securities Administrator Fees for such
Mortgage Loans, amounts available for
reimbursement of Advances pursuant to the
applicable Servicing Agreement or this
Agreement and expenses and indemnities
reimbursable pursuant to this Agreement or
the Servicing Agreements), (ii) all
Compensating Interest paid by the Servicers
for such Distribution Date with
respect to the Subgroup 4B Mortgage Loans,
(iii) the portion of any payment in
connection with any Principal Prepayment,
substitution, Repurchase Price,
Insurance Proceeds or Net Liquidation
Proceeds relating to interest with respect
to such Mortgage Loans received during the
prior calendar month, (iv) on the
Distribution Date on which the Subgroup 4B
Mortgage Loans and related REO
Property are sold at auction in accordance
with Section 10.01 hereof, that
portion of the Termination Price in respect
of interest and (v) any
Reimbursement Amount relating to the
Subgroup 4B Mortgage Loans received during
the prior calendar month.
Subgroup 4B Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-6
hereto.
Subgroup 4B Principal Percentage: With respect to any
Distribution
Date and the Class 4-A-2 Certificates and
the Class 4-A-3B Component, the
percentage equivalent of a fraction, the
numerator of which is the portion of
the Group 4 Principal Remittance Amount for
such Distribution Date allocable to
the Subgroup 4B Mortgage Loans and the
denominator of which is the Group 4
Principal Remittance Amount for such
Distribution Date.
Subgroup Subordinate Amount: With respect to any Distribution
Date
and any Loan Subgroup, the excess of the
Pool Stated Principal Balance for such
Loan Subgroup over the sum of the Class
Certificate Balance of the Senior
Certificates of the Related Subgroup and
the Component Balance of the Component
of the Related Subgroup immediately prior
to such date.
Subordinate Certificates: The Class 1-B Certificates, the Class
CB
Certificates, the Class M Certificates, the
Class 4-B Certificates, the Class
4-CE Certificates, the Class 4-R
Certificates and the Class 4-LR Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such
Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior
Prepayment Percentage for such Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Shifting Interest
Loan Group, an amount equal to the sum
of (i) the Subordinate Percentage for such
Loan Group of the amounts described
in clauses (i)(a) through (d) of the
definition of "Principal Amount" for such
Distribution Date and Loan Group and (ii)
the Subordinate Prepayment Percentage
of the amounts described in clauses (i)(e)
and (f) and the amount described in
clause (ii) of the definition of "Principal
Amount" for such Distribution Date
and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the
date of such substitution (i) have a
Stated Principal Balance, after deduction
of the principal portion of the
Monthly Payment due in the month of
substitution, not in excess of the Stated
Principal Balance of the Defective Mortgage
Loan; (ii) have a Net Mortgage
Interest Rate not less than and not more
than 2% greater than that of the
Defective Mortgage Loan; (iii) be of the
same type as the Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not
higher than that of the Defective
Mortgage Loan; (v) have a Gross Margin not
less than that of the Defective
Mortgage Loan; (vi) have a credit grade not
lower in quality than that of the
Defective Mortgage Loan; (vii) have the
same Index as the Defective Mortgage
Loan; (viii) have the same lien priority as
the Defective Mortgage Loan; (ix)
have a remaining term to maturity not
greater than (and not more than one year
less than) that of the Defective Mortgage
Loan; and (x) comply with each
Mortgage Loan representation and warranty
set forth in the applicable Servicing
Agreement, the Mortgage Loan Purchase
Agreement and this Agreement relating to
the Defective Mortgage Loan. More than one
Substitute Mortgage Loan may be
substituted for a Defective Mortgage Loan
if such Substitute Mortgage Loans meet
the foregoing attributes in the
aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Targeted Overcollateralization Amount: As of any Distribution
Date,
1.25% of the Cut-off Date Pool Principal
Balance of the Group 4 Mortgage Loans.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner
provided under Treasury Regulations
Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on
the
Moneyline Telerate Service (or such other
page as may replace the Telerate Page
3750 page on that service for the purpose
of displaying London interbank offered
rates of major banks).
Termination Date: As defined in Section 10.01 hereof.
Termination Price: As defined in Section 10.01 hereof.
Trigger Event: With respect to any Distribution Date, if (i)
the
three-month rolling average of 60+ Day
Delinquent Loans equals or exceeds 40% of
the Senior Enhancement Percentage or (ii)
the aggregate amount of Realized
Losses incurred on the Group 4 Mortgage
Loans since the Cut-off Date through the
Due Date in the month of such Distribution
Date (reduced by the aggregate amount
of Recoveries received since the Cut-off
Date through the Due Date in the month
of such Distribution Date on the Group 4
Mortgage Loans) divided by the Cut-off
Date Pool Principal Balance for Loan Group
4 exceeds the applicable percentages
set forth below with respect to such
Distribution Date:
Distribution Date Occurring In
Percentage
-----------------------------------
----------
December 2007 through November 2008
1.00%
December 2008 through November 2009
1.50%
December 2009 through November 2010
1.90%
December 2010 and thereafter
2.00%
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S.
Department of the Treasury.
Trust: The trust created by this Agreement, which shall be
named
"Banc of America Funding 2004-C Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created
hereby and to be administered hereunder,
with respect to a portion of which five
REMIC elections are to be made, such
entire Trust Estate consisting of: (i) such
Mortgage Loans as from time to time
are subject to this Agreement, together
with the Mortgage Files relating
thereto, and together with all collections
thereon and proceeds thereof, (ii)
any REO Property, together with all
collections thereon and proceeds thereof,
(iii) the Trustee's rights with respect to
the Mortgage Loans under all
insurance policies required to be
maintained pursuant to this Agreement and any
proceeds thereof, (iv) the right to receive
amounts, if any, payable on behalf
of any Mortgagor from the Buy-Down Account
relating to any Buy-Down Mortgage
Loan, (v) the Depositor's rights under the
Servicing Agreements and the Mortgage
Loan Purchase Agreement (including any
security interest created thereby), (vi)
the Securities Administrator's rights under
the Yield Maintenance Agreements and
(vii) the Servicer Custodial Accounts, the
Master Servicer Custodial Account,
the Distribution Account and the Reserve
Account and such assets that are
deposited therein from time to time and any
investments thereof, together with
any and all income, proceeds and payments
with respect thereto. The Buy-Down
Account shall not be part of the Trust
Estate.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor
trustee is appointed hereunder, such
successor, as trustee.
Uncertificated Accrued Interest: With respect to each
Uncertificated
Group 4 Lower-Tier Interest on each
Distribution Date, an amount equal to one
month's interest at the applicable Group 4
Lower-Tier Rate on the Uncertificated
Principal Balance of such Regular Interest.
In each case, Uncertificated Accrued
Interest will be reduced by any Prepayment
Interest Shortfalls and Relief Act
Interest Shortfalls (allocated to such
Regular Interests based on their
respective entitlements to interest
irrespective of any Prepayment Interest
Shortfalls and Relief Act Interest
Shortfalls for such Distribution Date).
Uncertificated Group 4 Lower-Tier Interest: A regular interest
in
the Group 4 Lower-Tier REMIC which is held
as an asset of the Group 4 Upper-Tier
REMIC and is entitled to monthly
distributions as provided in Section 5.03
hereof. Any of the Regular Interest LT1AA,
Regular Interest LT1A1, Regular
Interest LT1A2, Regular Interest LT1A3A,
Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest
LT1B2, Regular Interest LT1GRP, Regular
Interest LT1SUB, Regular Interest LT1XX,
Regular Interest LT1ZZ, Regular Interest
LT2GRP and Regular Interest LT2SUB are
Uncertificated Group 4 Lower-Tier
Interests. The Uncertificated Group 4
Lower-Tier Interests shall have the
following original Uncertificated Principal
Balances as of the Closing Date:
Designation Uncertificated Principal
Balance
-----------
--------------------------------
LT1AA
$136,852,963.92
LT1A1
$773,395.00
LT1A2
$394,040.00
LT1A3A
$75,860.00
LT1A3B
$38,650.00
LT1M1
$41,195.00
LT1M2
$30,020.00
LT1B1
$17,455.00
LT1B2
$8,380.00
LT1GRP
$18,502.34
LT1SUB
$1,517.24
LT1XX
$139,615,662.10
LT1ZZ
$1,413,922.63
LT2GRP
$18,502.34
LT2SUB
$773.03
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Middle-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS
Interest, Class 2-L Interest, Class 2-LS
Interest, Class 3-L Interest and Class 3-LS
Interest are Uncertificated
Lower-Tier Interests.
Uncertificated Middle-Tier Interest: A regular interest in the
Middle-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-A-M1 Interest, Class 1-A-MUR
Interest, Class 2-A-M1 Interest, Class
3-A-M1 Interest, Class 1-B-M1 Interest,
Class 1-B-M2 Interest, Class 1-B-M3
Interest, Class 1-B-M4 Interest, Class
1-B-M5 Interest, Class 1-B-M6 Interest,
Class CB-M1 Interest, Class CB-M2 Interest,
Class CB-M3 Interest, Class CB-M4
Interest, Class CB-M5 Interest and Class
CB-M6 Interest are Uncertificated
Middle-Tier Interests.
Uncertificated Principal Balance: The amount of any
Uncertificated
Group 4 Lower-Tier Interest outstanding as
of any date of determination. As of
the Closing Date, the Uncertificated
Balance of each Uncertificated Group 4
Lower-Tier Interest shall equal the amount
set forth in the definition of
"Uncertificated Group 4 Lower-Tier
Interest" hereto as its initial
uncertificated balance. On each
Distribution Date, the Uncertificated Principal
Balance of each Uncertificated Group 4
Lower-Tier Regular Interest shall be
reduced by all distributions of principal
made on such Uncertificated Group 4
Lower-Tier Regular Interest on such
Distribution Date pursuant to Section 5.03
and, if and to the extent necessary and
appropriate, shall be further reduced on
such Distribution Date by Realized Losses
as provided in Section 5.03(e). The
Uncertificated Balance of Regular Interest
LT1ZZ shall be increased by interest
deferrals as provided in Section
5.11(b)(i). The Uncertificated Principal
Balance of each Uncertificated Group 4
Lower-Tier Regular Interest shall never
be less than zero.
Unpaid Realized Loss Amount: For the Class 4-A-3A Component,
the
Class 4-A-3B Component, the Class 4-M-1
Certificates, the Class 4-M-2
Certificates, the Class 4-B-1 Certificates
and the Class 4-B-2 Certificates and
as to any Distribution Date, the excess of
(x) the aggregate Applied Realized
Loss Amounts, Class 4-A-3A Applied Realized
Loss Amounts or Class 4-A-3B Applied
Realized Loss Amounts allocated to such
Class or Component for all prior
Distribution Dates over (y) the sum of (a)
the cumulative amount of any
Recoveries allocated to such Class or
Component and (b) the aggregate Realized
Loss Amortization Amounts with respect to
such Class or Component for all prior
Distribution Dates.
Unscheduled Principal Payments: As to any Distribution Date and
Loan
Group (other than Loan Group 4), the sum of
(i) with respect to each Mortgage
Loan in such Loan Group that became a
Liquidated Mortgage Loan during the
calendar month preceding the month of such
Distribution Date, the amount of
Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received
by a Servicer with respect to such Mortgage
Loan during the calendar month
preceding the month of such Distribution
Date and (b) all Principal Prepayments
on the Mortgage Loans in such Loan Group
received by a Servicer during the
calendar month preceding the month of such
Distribution Date.
Upper-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the
Securities Administrator pursuant to
Section 3.09(g).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Middle-Tier Interests and such
amounts as shall from time to time be
deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the
case of a partnership, Treasury
Regulations are adopted that provide
otherwise) created or organized in or under
the laws of the United States, any state
thereof or the District of Columbia,
including an entity treated as a
corporation or partnership for federal income
tax purposes, an estate whose income is
subject to United States federal income
tax regardless of its source, or a trust if
a court within the United States is
able to exercise primary supervision over
the administration of such trust, and
one or more such U.S. Persons have the
authority to control all substantial
decisions of such trust (or, to the extent
provided in applicable Treasury
Regulations, certain trusts in existence on
August 20, 1996 which are eligible
to elect to be treated as U.S.
Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. As of any date of
determination, (a) 1% of all Voting Rights
shall be allocated to the Holders of
the Class 2-X-1 Certificates, (b) 1% of all
Voting Rights shall be allocated to
the Holders of the Class 4-CE Certificates,
(c) 1% of all Voting Rights shall be
allocated to the Holders of the Residual
Certificates and (d) the remaining
Voting Rights shall be allocated among
Holders of the remaining Classes of
Certificates in proportion to the
Certificate Balances of their respective
Certificates on such date.
Wells Fargo Bank: Wells Fargo Bank, N.A., or its successor in
interest.
Wells Fargo Servicing Agreement: The Seller's Warranties and
Servicing Agreement, dated as of November
1, 2004, by and between BANA and Wells
Fargo Bank.
Yield Maintenance Agreements: Any of the six yield maintenance
agreements between the Securities
Administrator, on behalf of the Trust, and the
Yield Maintenance Agreement Provider
substantially in the form attached hereto
as Exhibit O. The Yield Maintenance
Agreements shall not be an asset of any
REMIC formed under this Agreement.
Yield Maintenance Agreement Payment: On each Distribution Date
through the Distribution Date in October
2012, the amount equal to the product
of (x) the excess of the lesser of (i)
One-Month LIBOR and (ii) 11.50% over the
applicable strike rate for such
Distribution Date, as set forth on the
applicable table in Exhibit O hereto, (y)
the cap notional amount for such
Distribution Date as set forth on the table
in Exhibit O hereto and (z) a
fraction, the numerator of which is the
actual number of days elapsed since the
previous Distribution Date to but excluding
the current Distribution Date and
the denominator of which is 360.
Yield Maintenance Agreement Provider: Bank of America, National
Association and any successor thereto.
Section 1.02 Calculations. All dollar amounts calculated
hereunder
shall be rounded to the nearest penny with
one-half of one penny being rounded
down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and
delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to
the Trustee on behalf of the Trust
for the benefit of the Certificateholders,
without recourse, all the right,
title and interest of the Depositor in and
to the Mortgage Loans, including all
interest and principal received on or with
respect to the Mortgage Loans (other
than payments of principal and interest due
and payable on the Mortgage Loans on
or before the Cut-off Date), the
Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of
the Depositor as assignee of the
Seller with respect to the Seller's rights
under the Servicing Agreements, and
the Depositor's rights under the BANA
Servicing Agreement. The foregoing sale,
transfer, assignment and set over does not
and is not intended to result in a
creation of an assumption by the Trustee of
any obligation of the Depositor or
any other Person in connection with the
Mortgage Loans or any agreement or
instrument relating thereto, except as
specifically set forth herein. It is
agreed and understood by the parties hereto
that it is not intended that any
mortgage loan be included in the Trust that
is a "High-Cost Home Loan" as
defined in any of (i) the New Jersey Home
Ownership Act effective November 27,
2003, (ii) the New Mexico Home Loan
Protection Act effective January 1, 2004 or
(iii) the Massachusetts Predatory Home Loan
Practices Act effective November 7,
2004.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to
the Trustee for the benefit of the
Certificateholders, the following documents
or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wachovia Bank,
National
Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-C,
without
recourse,"
with all necessary intervening endorsements showing a complete
chain of
endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and
interest of
the party
so endorsing, as noteholder or assignee thereof, in and to that
Mortgage
Note) and, in the case of any Mortgage Loan originated in the
State of New York documented
by a NYCEMA, the NYCEMA, the new Mortgage
Note, if
applicable, the consolidated Mortgage Note and the consolidated
Mortgage;
(ii) except as provided below and other than with respect to
the
Mortgage
Loans purchased by the Seller under the Wells Fargo Servicing
Agreement,
the original recorded Mortgage with evidence of a recording
thereon,
or if any such Mortgage has not been returned from the
applicable
recording
office or has been lost, or if such public recording office
retains
the original recorded Mortgage, a copy of such Mortgage
certified
by the
applicable Servicer (which may be part of a blanket
certification)
as being a
true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a
duly
executed
Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee
for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-C" (which may be included in
a
blanket
assignment or assignments), together with, except as provided
below and
other than with respect to the Mortgage Loans purchased by the
Seller
under the Wells Fargo Servicing Agreement, originals of all
interim
recorded
assignments of such mortgage or a copy of such interim
assignment
certified
by the applicable Servicer (which may be part of a blanket
certification) as being a true and complete copy of the original
recorded
intervening assignments of Mortgage (each such assignment, when
duly and
validly
completed, to be in recordable form and sufficient to effect
the
assignment
of and transfer to the assignee thereof, under the Mortgage to
which the
assignment relates); provided that, if the related Mortgage has
not been
returned from the applicable public recording office, such
Assignment
of Mortgage may exclude the information to be provided by the
recording
office; and provided, further, if the related Mortgage has been
recorded
in the name of Mortgage Electronic Registration Systems, Inc.
("MERS")
or its designee, no Assignment of Mortgage in favor of the
Trustee
will be required to be prepared or delivered and instead, the
Master
Servicer shall enforce the obligations of the applicable
Servicer
to take
all actions as are necessary to cause the Trust to be shown as
the
owner of
the related Mortgage Loan on the records of MERS for purposes
of
the system
of recording transfers of beneficial ownership of mortgages
maintained
by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by
the
Seller
under the Wells Fargo Servicing Agreement, the original or
duplicate
original mortgagee title insurance policy and all riders
thereto;
(vi) the original of any guarantee executed in connection with
the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording
indicated thereon, or, if the lease is in the process of being
recorded,
a photocopy of the lease, certified by an officer of the
respective
prior owner of such Mortgage Loan or by the applicable title
insurance
company, closing/settlement/escrow agent or company or closing
attorney
to be a true and correct copy of the lease transmitted for
recordation;
(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 (other than
with
respect to
any Mortgage Loan secured by Co-op Shares purchased by the
Seller
under the Wells Fargo Servicing Agreement), the originals of
the
following
documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing
Date, with respect to item (iii), if an
Assignment of Mortgage is required to be
recorded as set forth below, the
Depositor has delivered to the Trustee a
copy of such Assignment of Mortgage in
blank rather than in the name of the
Trustee and has caused the applicable
Servicer to retain the completed Assignment
of Mortgage for recording as
described below, unless such Mortgage has
been recorded in the name of MERS or
its designee. In addition, if the Depositor
is unable to deliver or cause the
delivery of any original Mortgage Note due
to the loss of such original Mortgage
Note, the Depositor may deliver a copy of
such Mortgage Note, together with a
lost note affidavit, and shall thereby be
deemed to have satisfied the document
delivery requirements of this Section
2.01(b). As set forth on Exhibit J
attached hereto is a list of all states
where recordation is required by any
Rating Agency to obtain the initial ratings
of the Certificates. The Securities
Administrator and the Trustee may rely and
shall be protected in relying upon
the information contained in such Exhibit
J.
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim
recorded assignments, (C) all
assumption, modification, consolidation or
extension agreements, if any, or (D)
the lender's title policy (together with
all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or
(v) above, respectively,
concurrently with the execution and
delivery hereof because such document or
documents have not been returned from the
applicable public recording office in
the case of clause (ii), (iii) or (iv)
above, or because the title policy has
not been delivered to either the related
Servicer, the Seller or the Depositor
by the applicable title insurer in the case
of clause (v) above, the Depositor
shall promptly deliver or cause to be
delivered to the Trustee in the case of
clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such
assumption, modification, consolidation or
extension agreement, as the case may
be, with evidence of recording indicated
thereon upon receipt thereof from the
public recording office, but in no event
shall any such delivery of any such
documents or instruments be made later than
one year following the Closing Date,
unless, in the case of clause (ii), (iii)
or (iv) above, there has been a
continuing delay at the applicable
recording office or, in the case of clause
(v) above, there has been a continuing
delay at the applicable insurer and the
Depositor has delivered the Officer's
Certificate to such effect to the Trustee.
The Depositor shall forward or cause to be
forwarded to the Trustee (1) from
time to time additional original documents
evidencing an assumption or
modification of a Mortgage Loan and (2) any
other documents required to be
delivered by the Depositor or the
applicable Servicer to the Trustee. In the
event that the original Mortgage is not
delivered and in connection with the
payment in full of the related Mortgage
Loan the public recording office
requires the presentation of a "lost
instruments affidavit and indemnity" or any
equivalent document, because only a copy of
the Mortgage can be delivered with
the instrument of satisfaction or
reconveyance, the Depositor shall prepare,
execute and deliver or cause to be
prepared, executed and delivered, on behalf
of the Trust, such a document to the public
recording office.
Following a Document Transfer Event, the Depositor shall, with
respect to Mortgage Loans purchased by the
Seller under the Wells Fargo
Servicing Agreement, deliver, or cause to
be delivered, to the Trustee within 60
days copies (which may be in electronic
form mutually agreed upon by the
Depositor and the Trustee) of the following
additional documents or instruments
to the Mortgage File with respect to each
such Mortgage Loan; provided, however,
that originals of such documents or
instruments shall be delivered to the
Trustee, if originals are required under
the law in which the related Mortgaged
Property is located in order to exercise
all remedies available to the Trust
under applicable law following default by
the related Mortgagor:
(1) other than if the related Mortgage has been recorded in the
name
of MERS or its designee, an original copy
of any intervening assignment of
Mortgage showing a complete chain of
assignments;
(2) the original or a certified copy of lender's title
insurance
policy;
(3) the original Mortgage with evidence of recording thereon,
and
the original recorded power of attorney, if
the Mortgage was executed pursuant
to a power of attorney, with evidence of
recording thereon or, if such Mortgage
or power of attorney has been submitted for
recording but has not been returned
from the applicable public recording
office, has been lost or is not otherwise
available, a copy of such Mortgage or power
of attorney, as the case may be,
certified to be a true and complete copy of
the original submitted for
recording; and
(4) for each Mortgage Loan secured by Co-op Shares, the originals
of
the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
As promptly as practicable subsequent to such transfer and
assignment, the Master Servicer shall
(except for any Mortgage which has been
recorded in the name of MERS or its
designee) enforce the obligations of the
related Servicer pursuant to the related
Servicing Agreement to (I) cause each
Assignment of Mortgage to be in proper form
for recording in the appropriate
public office for real property records
within the time period required in the
applicable Servicing Agreement and (II) at
the Depositor's expense, cause to be
delivered for recording in the appropriate
public office for real property
records the Assignments of the Mortgages to
the Trustee, except that, with
respect to any Assignment of a Mortgage as
to which the related Servicer has not
received the information required to
prepare such assignment in recordable form,
such Servicer's obligation to do so and to
deliver the same for such recording
shall be as soon as practicable after
receipt of such information and in
accordance with the applicable Servicing
Agreement and, no recording of an
Assignment of Mortgage will be required in
a state if either (i) the Depositor
furnishes to the Trustee and the Securities
Administrator an unqualified Opinion
of Counsel reasonably acceptable to the
Trustee and the Securities Administrator
to the effect that recordation of such
assignment is not necessary under
applicable state law to preserve the
Trustee's interest in the related Mortgage
Loan against the claim of any subsequent
transferee of such Mortgage Loan or any
successor to, or creditor of, the Depositor
or the originator of such Mortgage
Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not
required by any Rating Agency in order to
obtain the initial ratings on the
Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of
delivering the above documents to
the Trustee, will cause the applicable
Servicer to deliver to the Master
Servicer for deposit in the Master Servicer
Custodial Account the portion of
such payment that is required to be
deposited in the Master Servicer Custodial
Account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following
paragraph, the Trustee declares that
it will hold the documents referred to in
Section 2.01 and the other documents
delivered to it constituting the Mortgage
Files, and that it will hold such
other assets as are included in the Trust
Estate delivered to it, in trust for
the exclusive use and benefit of all
present and future Certificateholders. Upon
execution and delivery of this document,
the Trustee shall deliver to the
Depositor and the Master Servicer a
certification in the form of Exhibit K
hereto (the "Initial Certification") to the
effect that, except as may be
specified in a list of exceptions attached
thereto, 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 the Mortgage Files
in its possession, and shall deliver
to the Depositor and the Master Servicer a
certification in the form of Exhibit
L hereto (the "Final Certification") to the
effect that, as to each Mortgage
Loan 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 finds any
document
constituting a part of a Mortgage File
which does not meet the requirements of
Section 2.01 or is omitted from such
Mortgage File or if the Depositor, the
Master Servicer, the Trustee or the
Securities Administrator discovers a breach
by a Servicer or the Seller of any
representation, warranty or covenant under
the Servicing Agreements or the Mortgage
Loan Purchase Agreement in respect of
any Mortgage Loan and such breach
materially adversely affects the interest of
the Certificateholders in the related
Mortgage Loan (provided that any such
breach that causes the Mortgage Loan not to
be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the code
shall be deemed to materially and
adversely affect the interests of the
Certificateholders), then such party shall
promptly so notify the Master Servicer, the
Seller, such Servicer and the
Depositor of such failure to meet the
requirements of Section 2.01 or of such
breach and request that the applicable
Servicer or the Seller, as applicable,
deliver such missing documentation or cure
such defect or breach within 90 days
of its discovery or its receipt of notice
of any such failure to meet the
requirements of Section 2.01 or of such
breach. If the Seller or the applicable
Servicer, as applicable, does not deliver
such missing document or cure such
defect or breach in all material respects
during such period, the Trustee shall
enforce the applicable Servicer's or
Seller's obligation, as the case may be,
under the applicable Servicing Agreement or
the Mortgage Loan Purchase
Agreement, as applicable, and cause the
applicable Servicer or Seller, as
applicable, to either (a) solely in the
case of the Seller, substitute for the
related Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be
accomplished in the manner and subject to
the conditions set forth below or (b)
purchase such Mortgage Loan from the Trust
at the Repurchase Price for such
Mortgage Loan; provided, however, that in
no event shall such a substitution
occur more than two years from the Closing
Date; provided, further, that such
substitution or repurchase must occur
within 90 days of when such defect was
discovered if such defect will cause the
Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section
860G(a)(3) of the Code.
In performing any such review, the Trustee 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
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. The
Trustee shall have no responsibility for
determining whether any document is
valid and binding, whether the text of any
assignment or endorsement is in
proper or recordable form, whether any
document has been recorded in accordance
with the requirements of any applicable
jurisdiction, or whether a blanket
assignment is permitted in any applicable
jurisdiction.
In the event of a discovery of a breach of any representation
or
warranty of a Servicer or the Seller, the
Trustee shall enforce the rights of
the Trust under the Servicing Agreements
and the Mortgage Loan Purchase
Agreement for the benefit of the
Certificateholders. In the event of a breach of
the representations or warranties with
respect to the Mortgage Loans set forth
in a Servicing Agreement, the Trustee shall
enforce the right of the Trust to be
indemnified for such breach of
representation or warranty. In addition, if a
breach of a representation set forth in
clauses (k) and (o) of paragraph 3 or
clauses (f) and (oo) of paragraph 4 of the
Mortgage Loan Purchase Agreement
occurs as a result of a violation of an
applicable predatory or abusive lending
law, the Trustee shall enforce the right of
the Trust to reimbursement by the
Seller for all costs or damages incurred by
the Trust as a result of the
violation of such law (such amount, the
"Reimbursement Amount"), but, in the
case of a breach of a representation set
forth in clauses (k) and (o) of
paragraph 3, only to the extent the
applicable Servicer does not so reimburse
the Trust. It is understood and agreed
that, except for any indemnification
provided in the Servicing Agreements and
the payment of any Reimbursement
Amount, the obligation of a Servicer or the
Seller to cure or to repurchase (or
substitute, in the case of the Seller) any
Mortgage Loan as to which a document
is missing, a material defect in a
constituent document exists or as to which
such a breach has occurred and is
continuing shall constitute the sole remedy
against a Servicer or the Seller in respect
of such omission, defect or breach
available to the Trustee on behalf of the
Certificateholders.
It is understood and agreed that the representations and
warranties
set forth in the Mortgage Loan Purchase
Agreement shall survive delivery of the
Mortgage Files to the Trustee and shall
inure to the benefit of the
Certificateholders notwithstanding any
restrictive or qualified endorsement or
assignment. With respect to the
representations and warranties set forth in the
Mortgage Loan Purchase Agreement that are
made to the best of the Seller's
knowledge or as to which the Seller had no
knowledge, if it is discovered by the
Depositor, the Master Servicer or the
Trustee that the substance of such
representation or warranty is inaccurate
and such inaccuracy materially and
adversely affects the interest of the
Certificateholders in the related Mortgage
Loan then, notwithstanding the Seller's
lack of knowledge with respect to the
substance of such representation or
warranty being inaccurate as the time the
representation or warranty was made, such
inaccuracy shall be deemed a breach of
the applicable representation or
warranty.
The representations and warranties of each Servicer with respect
to
the applicable Mortgage Loans in the
related Servicing Agreement, which have
been assigned to the Trustee hereunder,
were made as of the date specified in
such Servicing Agreement. To the extent
that any fact, condition or event with
respect to a Mortgage Loan constitutes a
breach of both (i) a representation or
warranty of a Servicer under the related
Servicing Agreement and (ii) a
representation or warranty of the Seller
under the Mortgage Loan Purchase
Agreement, the only right or remedy of the
Trustee or of any Certificateholder
shall be the Trustee's right to enforce the
obligations of the applicable
Servicer under any applicable
representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no
obligation or liability with respect
to any breach of a representation or
warranty made by it with respect to the
Mortgage Loans if the fact, condition or
event constituting such breach also
constitutes a breach of a representation or
warranty made by the applicable
Servicer in the applicable Servicing
Agreement, without regard to whether such
Servicer fulfills its contractual
obligations in respect of such representation
or warranty. The Trustee further
acknowledges that the Depositor shall have no
obligation or liability with respect to any
breach of any representation or
warranty with respect to the Mortgage Loans
(except as set forth in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee, for the benefit of
the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment
of Mortgage (except for any Mortgage
which has been recorded in the name of MERS
or its designee), and such other
documents and agreements as are otherwise
required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No
substitution is permitted to be made in any
calendar month after the
Determination Date for such month. Monthly
Payments due with respect to any such
Substitute Mortgage Loan in the month of
substitution shall not be part of the
Trust Estate. For the month of
substitution, distributions to Certificateholders
will include the Monthly Payment due for
such month on any Defective Mortgage
Loan for which the Seller has substituted a
Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for
the
benefit of the Certificateholders to
reflect the removal of each Mortgage Loan
that has become a Defective Mortgage Loan
and the substitution of the Substitute
Mortgage Loan or Loans and the Master
Servicer shall deliver the amended
Mortgage Loan Schedule to the Securities
Administrator and the Trustee. Upon
such substitution, each Substitute Mortgage
Loan shall be subject to the terms
of this Agreement in all respects, and the
Seller shall be deemed to have made
to the Trustee with respect to such
Substitute Mortgage Loan, as of the date of
substitution, the representations and
warranties made pursuant to paragraph 4 of
the Mortgage Loan Purchase Agreement. Upon
any such substitution and the deposit
to the Master Servicer Custodial Account of
any required Substitution Adjustment
Amount (as described in the next paragraph)
and receipt of a Request for
Release, the Trustee shall upon receipt of
written notice from the Master
Servicer of such deposit, release the
Mortgage File relating to such Defective
Mortgage Loan to the Seller and shall
execute and deliver at the Seller's
direction such instruments of transfer or
assignment prepared by the Seller, in
each case without recourse, as shall be
necessary to vest title in the Seller,
or its designee, to the Trustee's interest
in any Defective Mortgage Loan
substituted for pursuant to this Section
2.02.
For any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Defective
Mortgage Loans, the amount (if any) by
which the aggregate principal balance of
all such Substitute Mortgage Loans in a
Loan Group as of the date of substitution
is less than the aggregate Stated
Principal Balance of all such Defective
Mortgage Loans in a Loan Group (after
application of the principal portion of the
Monthly Payments due in the month of
substitution) (the "Substitution Adjustment
Amount" for such Loan Group) plus an
amount equal to the aggregate of any
unreimbursed Advances with respect to such
Defective Mortgage Loans shall be remitted
to the Master Servicer Custodial
Account by the Seller on or before the
Servicer Remittance Date for the
Distribution Date in the month succeeding
the calendar month during which the
related Mortgage Loan is required to be
purchased or replaced hereunder. The
Repurchase Price of any repurchase and the
Substitution Adjustment Amount, if
any, shall be deposited in the Master
Servicer Custodial Account. The Master
Servicer shall give the Securities
Administrator and Trustee written notice of
such deposits.
The Trustee shall retain possession and custody of each
Mortgage
File in accordance with and subject to the
terms and conditions set forth
herein. The Master Servicer shall cause to
be promptly delivered to the Trustee,
upon the execution or, in the case of
documents requiring recording, receipt
thereof, the originals of such other
documents or instruments constituting the
Mortgage File as come into the Master
Servicer's possession from time to time.
The Trustee 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).
The Securities Administrator is hereby directed to execute and
deliver, on behalf of the Trust, the Yield
Maintenance Agreements.
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer.
The Master Servicer hereby makes the following representations
and
warranties to the Depositor, the Securities
Administrator and the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered
and validly existing in good standing under the laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted. The Master Servicer has power and
authority
to execute and deliver this Agreement and to perform in
accordance
herewith; the execution, delivery and performance of this
Agreement
(including all instruments of transfer to be delivered pursuant
to this
Agreement) by the Master Servicer and the consummation of the
transactions contemplated hereby have been duly and validly
authorized.
This
Agreement, assuming due authorization, execution and delivery by
the
other
parties hereto, evidences the valid, binding and enforceable
obligation
of the Master Servicer, subject to applicable law except as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation,
receivership, moratorium, reorganization or other similar laws
affecting
the
enforcement of the rights of creditors and (B) general principles
of
equity,
whether enforcement is sought in a proceeding in equity or at
law.
All
requisite corporate action has been taken by the Master Servicer
to
make this
Agreement valid and binding upon the Master Servicer in
accordance
with its terms.
(ii) No consent, approval, authorization or order is required
for
the transactions
contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the Master Servicer is required or, if
required,
such
consent, approval, authorization or order has been or will, prior
to
the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the Master Servicer
and will
not result in the breach of any term or provision of the
charter
or by-laws
of the Master Servicer or result in the breach of any term or
provision
of, or conflict with or constitute a default under or result in
the
acceleration of any obligation under, any agreement, indenture or
loan
or credit
agreement or other instrument to which the Master Servicer or
its
property is subject, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Master Servicer
or its
property
is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the Master Servicer, threatened against the
Master
Servicer which, either individually or in the aggregate, would
result in
any material adverse change in the business, operations,
financial
condition, properties or assets of the Master Servicer, or in
any
material impairment of the right or ability of the Master Servicer
to
carry on
its business substantially as now conducted or which would draw
into
question the validity of this Agreement or the Mortgage Loans or
of
any action
taken or to be taken in connection with the obligations of the
Master
Servicer contemplated herein, or which would materially impair
the
ability of
the Master Servicer to perform under the terms of this
Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the
respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as
to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee
with
respect to the Mortgage Loans or each
Mortgage Loan, as the case may be, as of
the date hereof or such other date set
forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment
contemplated
herein,
the Depositor was the sole owner and holder of the Mortgage
Loans.
The
Mortgage Loans were not assigned or pledged by the Depositor and
the
Depositor
had good and marketable title thereto, and the Depositor had
full right
to transfer and sell the Mortgage Loans to the Trustee free and
clear of
any encumbrance, participation interest, lien, equity, pledge,
claim or
security interest and had full right and authority subject to
no
interest
or participation in, or agreement with any other party to sell
or
otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right,
title and interest in the Mortgage Loans to the Trustee on
behalf
of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred
the
Mortgage
Loans to the Trustee on behalf of the Trust with any intent to
hinder,
delay or defraud an of its creditors.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall
survive delivery of the respective Mortgage
Files to the Trustee and shall inure to the
benefit of the Trustee,
notwithstanding any restrictive or
qualified endorsement or assignment.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Senior
Certificates (other than the Group 4
Certificates and the Residual Certificates)
as "regular interests" and the Class
1-A-R Certificate as the single class of
"residual interest" in the Upper-Tier
REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively.
The Depositor hereby designates the Group 4
Certificates (other than the Class
4-A-3, Class 4-R and Class 4-LR
Certificates) and the Components as "regular
interests" and the Class 4-R Certificate as
the single class of "residual
interest" in the Group 4 Upper-Tier REMIC
for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively.
The Depositor hereby further designates
(i) the Uncertificated Lower-Tier Interests
as classes of "regular interests"
and the Class 1-A-LR Certificate as the
single class of "residual interest" in
the Lower-Tier REMIC for the purposes of
Code Sections 860G(a)(1) and
860G(a)(2), respectively; (ii) the
Uncertificated Middle-Tier Interests as
classes of "regular interests" and the
Class 1-A-MR Certificate as the single
class of "residual interest" in the
Middle-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2),
respectively; and (iii) the Uncertificated
Group 4 Lower-Tier Interests as classes of
"regular interests" and the Class
4-LR Certificate as the single class of
"residual interest" in the Group 4
Lower-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each
REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest
possible maturity date" of the regular
interests in each REMIC is December 20,
2034.
Section 2.08 Execution and Delivery of Certificates. The
Securities
Administrator (i) acknowledges the issuance
of and hereby declares that it holds
the Uncertificated Lower Tier Interests on
behalf of the 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 and Uncertificated Lower
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 Lower Tier
Interests, evidence ownership of the entire
Trust Estate.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and on
behalf of the Certificateholders, the
Master Servicer shall supervise, monitor
and oversee the obligations of the
Servicers to service and administer their
respective Mortgage Loans in accordance
with the terms of the applicable
Servicing Agreement and shall have full
power and authority to do any and all
things which it may deem necessary or
desirable in connection with such master
servicing and administration. In performing
its obligations hereunder, the
Master Servicer shall act in a manner
consistent with this Agreement, subject to
the prior sentence, and with customary and
usual standards of practice of
prudent mortgage loan master servicers.
Furthermore, the Master Servicer shall
oversee and consult with each Servicer as
necessary from time-to-time to carry
out the Master Servicer's obligations
hereunder, shall receive, review and
evaluate all reports, information and other
data provided to the Master Servicer
by each Servicer and shall cause each
Servicer to perform and observe the
covenants, obligations and conditions to be
performed or observed by such
Servicer under the applicable Servicing
Agreement. The Master Servicer shall
independently and separately monitor each
Servicer's servicing activities with
respect to each related Mortgage Loan,
reconcile the results of such monitoring
with such information provided in the
previous sentence on a monthly basis and
coordinate corrective adjustments to the
Servicers' and Master Servicer's
records, and based on such reconciled and
corrected information, prepare the
Master Servicer's Certificate and any other
information and statements required
hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan
monitoring with the actual remittances of
the Servicers to the Master Servicer
Custodial Account pursuant to the
applicable Servicing Agreements.
The relationship of the Master Servicer (and of any successor to
the
Master Servicer as master servicer under
this Agreement) to the Trustee and the
Securities Administrator under this
Agreement is intended by the parties to be
that of an independent contractor and not
that of a joint venturer, partner or
agent.
Section 3.02 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to
the
Trustee, the Securities Administrator and
the Depositor the compliance by each
Servicer with its duties under the related
Servicing Agreement. In the review of
each Servicer's activities, the Master
Servicer may rely upon an officer's
certificate of the Servicer with regard to
such Servicer's compliance with the
terms of its Servicing Agreement. In the
event that the Master Servicer, in its
judgment, determines that a Servicer should
be terminated in accordance with its
Servicing Agreement, or that a notice
should be sent pursuant to such Servicing
Agreement with respect to the occurrence of
an event that, unless cured, would
constitute grounds for such termination,
the Master Servicer shall notify the
Depositor, the Securities Administrator and
the Trustee thereof and the Master
Servicer shall issue such notice or take
such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the
obligations of each Servicer under the
related Servicing Agreement, and shall, in
the event that a Servicer fails to
perform its obligations in accordance with
the related Servicing Agreement,
subject to the preceding paragraph,
terminate the rights and obligations of such
Servicer thereunder and act as successor
Servicer of the related Mortgage Loans
under the applicable Servicing Agreement
(except, in the case of the termination
of Wells Fargo Bank as Servicer under the
Wells Fargo Servicing Agreement, the
Trustee, if it so elects, shall act as
successor Servicer, or shall appoint a
successor Servicer, of the related Mortgage
Loans under the Wells Fargo
Servicing Agreement) or cause the Trustee
to enter in to a new Servicing
Agreement with a successor Servicer
selected by the Master Servicer (except, in
the case of the Wells Fargo Servicing
Agreement, the Trustee shall select the
successor Servicer); provided, however, it
is understood and acknowledged by the
parties hereto that there will be a period
of transition (not to exceed 90 days)
before the actual servicing functions can
be fully transferred to such successor
Servicer. Such enforcement, including,
without limitation, the legal prosecution
of claims, termination of Servicing
Agreements and the pursuit of other
appropriate remedies, shall be in such form
and carried out to such an extent
and at such time as the Master Servicer, in
its good faith business judgment,
would require were it the owner of the
related Mortgage Loans. The Master
Servicer and Trustee, as applicable, shall
pay the costs of such enforcement at
its own expense, and shall be reimbursed
therefor only (i) from a general
recovery resulting from such enforcement to
the extent, if any, that such
recovery exceeds all amounts due in respect
of the related Mortgage Loan or (ii)
from a specific recovery of costs, expenses
or attorneys fees against the party
whom such enforcement is directed, provided
that the Master Servicer and the
Trustee, as applicable, shall not be
required to prosecute or defend any legal
action except to the extent that the Master
Servicer or the Trustee, as
applicable, shall have received reasonable
indemnity for its costs and expenses
in pursuing such action.
(c) To the extent that any Servicing Transfer Costs are not
fully
and timely reimbursed by the terminated
Servicer, the Master Servicer or the
Trustee, as applicable, shall be entitled
to reimbursement of such costs and
expenses from the Master Servicer Custodial
Account.
(d) The Master Servicer shall require each Servicer to comply
with
the remittance requirements and other
obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and
warranties of the Servicer, if any, that
it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Master Servicer shall maintain, at its own
expense, a blanket fidelity bond and
an errors and omissions insurance policy,
with broad coverage on all officers,
employees or other persons involved in the
performance of its obligations as
Master Servicer hereunder. These policies
must insure the Master Servicer
against losses resulting from dishonest or
fraudulent acts committed by the
Master Servicer's personnel, any employees
of outside firms that provide data
processing services for the Master
Servicer, and temporary contract employees or
student interns. No provision of this
Section 3.03 requiring such fidelity bond
and errors and omissions insurance shall
diminish or relieve the Master Servicer
from its duties and obligations as set
forth in this Agreement. The minimum
coverage under any such bond and insurance
policy shall be at least equal to the
corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC
in the FHLMC Sellers' & Servicers'
Guide, as amended or restated from time to
time, or in an amount as may be permitted
to the Master Servicer by express
waiver of FNMA or FHLMC. In the event that
any such policy or bond ceases to be
in effect, the Master Servicer shall obtain
a comparable replacement policy or
bond from an insurer or issuer, meeting the
requirements set forth above as of
the date of such replacement.
Section 3.04 Access to Certain Documentation.
The Master Servicer shall provide and cause each Servicer to
provide
in accordance with the related Servicing
Agreement to the OCC, the OTS, the FDIC
and to comparable regulatory authorities
supervising Holders of Certificates and
the examiners and supervisory agents of the
OCC, the OTS, the FDIC and such
other authorities, access to the
documentation required by applicable
regulations of the OCC, the OTS, the FDIC
and such other authorities with
respect to the Mortgage Loans. Such access
shall be afforded without charge, but
only upon reasonable and prior written
request and during normal business hours
at the offices designated by the Master
Servicer and the related Servicer. In
fulfilling such request for access, the
Master Servicer shall not be responsible
to determine the sufficiency of any
information provided by such Servicer.
Nothing in this Section 3.04 shall limit
the obligation of the Master Servicer
and the related Servicer to observe any
applicable law and the failure of the
Master Servicer or the related Servicer to
provide access as provided in this
Section 3.04 as a result of such obligation
shall not constitute a breach of
this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The Master Servicer shall not take, or permit any Servicer
(to
the extent such action is prohibited under
the applicable Servicing Agreement)
to take, any action that would result in
noncoverage under any applicable
Primary Mortgage Insurance Policy of any
loss which, but for the actions of such
Master Servicer or Servicer, would have
been covered thereunder. The Master
Servicer shall use its best reasonable
efforts to cause each Servicer (to the
extent required under the related Servicing
Agreement) to keep in force and
effect (to the extent that the Mortgage
Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance
applicable to each Mortgage Loan in
accordance with the provisions of this
Agreement and the related Servicing
Agreement, as applicable. The Master
Servicer shall not, and shall not permit
any Servicer (to the extent required under
the related Servicing Agreement) to,
cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is in
effect at the date of the initial issuance
of the Mortgage Note and is required
to be kept in force hereunder except in
accordance with the provisions of this
Agreement and the related Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer
(to the extent required under the related
Servicing Agreement) to present, on
behalf of the Trustee and the
Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies
and, in this regard, to take such
reasonable action as shall be necessary to
permit recovery under any Primary
Mortgage Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to
Sections 3.08 and 3.09, any amounts
collected by the Master Servicer or any
Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the
Master Servicer Custodial Account, subject
to withdrawal pursuant to Section
3.12.
Section 3.06 Rights of the Depositor, the Securities
Administrator
and the Trustee in Respect of the Master
Servicer.
The Depositor may, but is not obligated to, enforce the
obligations
of the Master Servicer hereunder and may,
but is not obligated to, perform, or
cause a designee to perform, any defaulted
obligation of the Master Servicer
hereunder and in connection with any such
defaulted obligation to exercise the
related rights of the Master Servicer
hereunder; provided that the Master
Servicer shall not be relieved of any of
its obligations hereunder by virtue of
such performance by the Depositor or its
designee. None of the Securities
Administrator, the Trustee or the Depositor
shall have any responsibility or
liability for any action or failure to act
by the Master Servicer and the
Securities Administrator, the Trustee or
the Depositor shall not be obligated to
supervise the performance of the Master
Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
If the Master Servicer shall for any reason no longer be the
Master
Servicer hereunder (including by reason of
an Event of Default), the Trustee
shall within 90 days of such time, assume,
if it so elects, or shall appoint a
successor Master Servicer to assume, all of
the rights and obligations of the
Master Servicer hereunder arising
thereafter. Any such assumption shall be
subject to Sections 7.02 and 8.05.
The predecessor Master Servicer shall, upon request of the
Trustee,
but at the expense of the predecessor
Master Servicer, deliver to the assuming
party all master servicing documents and
records and an accounting of amounts
collected or held by it and otherwise use
its best efforts to effect the orderly
and efficient transfer of such substitute
documentation and records to the
assuming party. The Trustee shall be
entitled to be reimbursed from the Master
Servicer (or the Trust if the Master
Servicer is unable to fulfill its
obligations hereunder) for all Master
Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts; Buy-Down Accounts.
The Master Servicer shall enforce the obligation of each Servicer
to
establish and maintain a Servicer Custodial
Account in accordance with the
applicable Servicing Agreement, with
records to be kept with respect thereto on
a Mortgage Loan by Mortgage Loan basis,
into which accounts shall be deposited
within 48 hours (or as of such other time
specified in the related Servicing
Agreement) of receipt all collections of
principal and interest on any Mortgage
Loan and with respect to any REO Property
received by a Servicer, including
Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, Recoveries and
Advances made from the Servicer's own funds
(less servicing compensation as
permitted by the applicable Servicing
Agreement in the case of any Servicer) and
all other amounts to be deposited in the
Servicer Custodial Account. The Master
Servicer is hereby authorized to make
withdrawals from and deposits to the
related Servicer Custodial Account for
purposes required or permitted by this
Agreement.
The Master Servicer shall also enforce the obligation of each
Servicer to establish and maintain a
Buy-Down Account in accordance with the
applicable Servicing Agreement, with
records to be kept with respect thereto on
a Mortgage Loan by Mortgage Loan basis,
into which accounts any Buy-Down Funds
shall be deposited within 48 hours (or as
of such other time specified in the
related Servicing Agreement) of receipt
thereof. The Master Servicer is hereby
authorized to make withdrawals from and
deposits to the related Buy-Down Account
for purposes required or permitted by this
Agreement. In addition, the Master
Servicer shall enforce the obligation of
each Servicer to withdraw from the
Buy-Down Account and deposit in immediately
available funds in the Servicer
Custodial Account an amount which, when
added to such Mortgagor's payment, will
equal the full monthly payment due under
the related Mortgage Note.
Section 3.09 Collection of Mortgage Loan Payments; Master
Servicer
Custodial Account, Servicer Custodial
Account, Distribution Account and Reserve
Account. (a) Continuously from the date
hereof until the principal and interest
on all Mortgage Loans are paid in full, the
Master Servicer shall enforce the
obligations of the Servicers to collect all
payments due under the terms and
provisions of the Mortgage Loans when the
same shall become due and payable to
the extent such procedures shall be
consistent with the applicable Servicing
Agreement.
(b) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be
an Eligible Account. The Master
Servicer shall promptly upon receipt,
deposit in the Master Servicer Custodial
Account and retain therein any amounts
which are required to be deposited in the
Master Servicer Custodial Account by the
Master Servicer.
(c) The Securities Administrator shall establish and maintain
the
Distribution Account, which shall be deemed
to consist of ten sub-accounts and
into which the Master Servicer will deposit
on or prior to 11:00 AM New York
time, on each Distribution Date (or, if the
Securities Administrator is no
longer the same Person as, or an Affiliate
of, the Master Servicer, the Business
Day preceding each Distribution Date), all
amounts on deposit in the Master
Servicer Custodial Account for distribution
to Certificateholders. The
Distribution Account shall be an Eligible
Account.
(d) On a daily basis within one Business Day of receipt, except
as
otherwise specifically provided herein, the
Master Servicer shall deposit or
cause to be deposited into the Master
Servicer Custodial Account the following
payments and collections remitted to the
Master Servicer by each Servicer from
its respective Servicer Custodial Account
pursuant to the related Servicing
Agreement or otherwise received by the
Master Servicer in respect of the
Mortgage Loans subsequent to the Cut-off
Date (other than in respect of
principal and interest due on the Mortgage
Loans on or before the Cut-off Date)
and the following amounts required to be
deposited hereunder:
(i) all payments on account of principal of the Mortgage Loans,
including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net
of the
related Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds,
other
than
Insurance Proceeds to be (1) applied to the restoration or repair
of
the
Mortgaged Property, (2) released to the Mortgagor in accordance
with
Customary
Servicing Procedures or (3) required to be deposited to an
Escrow
Account pursuant to Section 3.10 and (B) any Insurance Proceeds
released
from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the Master Servicer Custodial
Account;
(v) any amounts relating to REO Property required to be remitted
by
the
applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant
to
the
related Servicing Agreement (or, if applicable, by the Master
Servicer
or Trustee
pursuant to Section 3.22) and any Compensating Interest paid by
the
applicable Servicer pursuant to the related Servicing
Agreement;
(vii) all Repurchase Prices, all Substitution Adjustment Amounts
and
all
Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to
Section
3.08;
and
(x) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to
be
deposited, it may at any time withdraw such
amount from the Master Servicer
Custodial Account, any provision herein to
the contrary notwithstanding. All
funds required to be deposited in the
Master Servicer Custodial Account shall be
held by the Master Servicer in trust for
the Certificateholders until disbursed
in accordance with this Agreement or
withdrawn in accordance with Section 3.12.
Amounts received in respect of the Group 1
Mortgage Loans shall be deemed
deposited in Sub-Account 1. Amounts
received in respect of the Group 2 Mortgage
Loans shall be deemed deposited in
Sub-Account 2. Amounts received in respect of
the Group 3 Mortgage Loans shall be deemed
deposited in Sub-Account 3. Amounts
received in respect of the Group 4 Mortgage
Loans shall be deemed deposited in
Sub-Account 4.
(e) Each institution at which the Master Servicer Custodial
Account
is maintained shall invest the funds
therein as directed in writing by the
Master Servicer in Permitted Investments,
which shall mature not later than the
Business Day next preceding the
Distribution Date (except that if such Permitted
Investment is an obligation of the
institution that maintains such account, then
such Permitted Investment shall mature not
later than such Distribution Date)
and, in each case, shall not be sold or
disposed of prior to its maturity. All
such Permitted Investments shall be made in
the name of the Trustee, for the
benefit of the Certificateholders. All
Master Servicer Custodial Account
Reinvestment Income shall be for the
benefit of the Master Servicer as part of
its master servicing compensation and shall
be remitted to the Master Servicer
monthly as provided herein. The amount of
any losses realized in the Master
Servicer Custodial Account incurred in any
such account in respect of any such
investments shall promptly be deposited by
the Master Servicer from its own
funds in the Master Servicer Custodial
Account. Each institution at which the
Distribution Account is maintained shall
invest the funds therein if directed in
writing by the Securities Administrator in
Permitted Investments that are
obligations of the institution that
maintains the Distribution Account, which
shall mature on the Distribution Date and
shall not be sold or disposed of prior
to its maturity. All such Permitted
Investments shall be made in the name of the
Trustee, for the benefit of the
Certificateholders. All income and gains net of
any losses realized since the preceding
Distribution Date from Permitted
Investments of funds in the Distribution
Account shall be for the benefit of the
Securities Administrator as additional
compensation and the amount of any losses
realized in the Distribution Account in
respect of any such Permitted
Investments shall promptly be deposited by
the Securities Administrator from its
own funds in the Distribution Account.
(f) The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and
the Rating Agencies of any proposed
change of location of the Master Servicer
Custodial Account not later than 30
days after and not more that 45 days prior
to any change thereof. The Securities
Administrator shall give notice to the
Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any
proposed change of the location of the
Distribution Account maintained by the
Securities Administrator not later than
30 days after and not more than 45 days
prior to any change thereof. The
creation of the Master Servicer Custodial
Account and the Distribution Account
shall be evidenced by a certification
substantially in the form of Exhibit F
hereto.
(g) The Securities Administrator shall designate each of the
Middle-Tier Sub-Account and the Upper-Tier
Certificate Sub-Account and the Group
4 Upper-Tier Distribution Account as a
sub-account of the Distribution Account.
On each Distribution Date, the Securities
Administrator shall, from funds
available on deposit in the Distribution
Account (and deemed on deposit in
Sub-Account 1, Sub-Account 2 and
Sub-Account 3, as applicable), be deemed to
deposit into the Middle-Tier Sub-Account,
the Lower-Tier Distribution Amount.
The Securities Administrator shall then
immediately, from funds available in the
Middle-Tier Sub-Account, be deemed to
deposit into the Upper-Tier Certificate
Sub-Account, the Middle-Tier Distribution
Amount. On each Distribution Date, the
Securities Administrator shall, from funds
available on deposit in the
Distribution Account (and deemed on deposit
in Sub-Account 4), be deemed to
deposit into the Group 4 Upper-Tier
Sub-Account, the Group 4 Lower-Tier
Distribution Amount.
(h) (i) The Securities Administrator shall establish and
maintain
the Reserve Account, held in trust for the
benefit of the Holders of the Offered
Group 4 Certificates. The Securities
Administrator shall deposit in the Reserve
Account on the date received by it, any
Yield Maintenance Agreement Payments
received from the Yield Maintenance
Agreement Counterparty for the related
Distribution Date. Funds on deposit in the
Reserve Account shall remain
uninvested. On each Distribution Date, the
Securities Administrator shall
withdraw from the Reserve Account any Yield
Maintenance Agreement Payments and
apply them in the following order of
priority:
(A) to the Offered Group 4 Certificates, any remaining unpaid
Cap Carryover Amounts for such classes for such Distribution
Date
(after distributions pursuant to Section 5.03(c) hereof, first,
concurrently, to the Class 4-A Certificates (other than the
Class
4-A-3 Certificates) and the Components, pro rata, and then,
sequentially, to the Class 4-M-1, Class 4-M-2, Class 4-B-1 and
Class
4-B-2 Certificates, in that order; and
(B) to the Class 4-CE Certificates, any remaining amounts on
deposit in the Reserve Account.
(ii) The Trustee shall account for the Reserve Account as an
asset
of the
Grantor Trust and not an asset of any REMIC created pursuant to
this
Agreement. The beneficial owner of the Reserve Account is the
Class
4-CE
Certificateholder. For all federal tax purposes, amounts
transferred
or
reimbursed by the Group 4 Upper-Tier REMIC to the Reserve Account
shall
be treated
as distributions by the Securities Administrator to the Class
4-CE
Certificateholder.
(iii) Any Cap Carryover Amounts paid by the Securities
Administrator
pursuant
to this Section 3.09(h) to the Offered Group 4 Certificates
shall
be
accounted for by the Trustee as amounts paid first to the Class
4-CE
Certificates and then to the Offered Group 4 Certificates from the
Grantor
Trust. In
addition, the Trustee shall account for the Offered Group 4
Certificates' rights to receive payments of Cap Carryover Amounts
as
rights in
limited recourse interest rate cap contracts written by the
Class 4-CE
Certificates in favor of the Offered Group 4 Certificates.
(i) For federal tax return and information reporting, the right
of
the Holders of the Offered Group 4
Certificates to receive payments under the
Yield Maintenance Agreements in respect of
any related Yield Maintenance
Agreement Payments shall be assigned a
value of zero.
Section 3.10 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.
To the extent required by the related Servicing Agreement and by
the
related Mortgage Note and not violative of
current law, the Master Servicer
shall require each Servicer to establish
and maintain one or more escrow
accounts (for each Servicer, collectively,
the "Escrow Account") and deposit and
retain therein all collections from the
Mortgagors (or Advances by such
Servicer) for the payment of taxes,
assessments, hazard insurance premiums or
comparable items for the account of the
Mortgagors. Nothing herein shall require
the Master Servicer to compel a Servicer to
establish an Escrow Account in
violation of applicable law.
Section 3.11 Access of Securities Administrator and Trustee to
Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation
of
the Servicers to afford the Securities
Administrator and the Trustee reasonable
access to all records and documentation
regarding the Mortgage Loans and all
accounts, insurance information and other
matters relating to this Agreement,
such access being afforded without charge,
but only upon reasonable request and
during normal business hours at the office
designated by the Master Servicer or
the applicable Servicer.
Section 3.12 Permitted Withdrawals from the Master Servicer
Custodial Account and the Distribution
Account.
(a) The Securities Administrator shall withdraw funds from the
Distribution Account for distributions to
Certificateholders in the manner
specified in this Agreement. In addition,
the Master Servicer may from time to
time make withdrawals from the Master
Servicer Custodial Account for the
following purposes:
(i) to pay to the Servicers (to the extent not previously
retained
by them),
the Servicing Fee to which they are entitled pursuant to the
Servicing
Agreements, to pay the Securities Administrator the Securities
Administrator Fee and to pay itself any Master Servicer Custodial
Account
Reinvestment Income;
(ii) to pay the Securities Administrator and the Trustee any
amounts
due to the
Securities Administrator and the Trustee under this Agreement
(including, but not limited to, all amounts provided for under
Section
9.11,
other than the amounts provided for in the first sentence of
Section
9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or
the
Trustee)
for unreimbursed Advances made pursuant to the related
Servicing
Agreement
(or in the case of the Master Servicer or the Trustee, pursuant
to Section
3.22), such right of reimbursement pursuant to this clause
(iii)
being limited first to amounts received on the Mortgage Loans
serviced
by such Servicer (or, if applicable, the Master Servicer or the
Trustee)
in the related Loan Group in respect of which any such Advance
was made
and then limited to amounts received on all the Mortgage Loans
serviced
by such Servicer (or, if applicable, the Master Servicer or the
Trustee);
(iv) to reimburse the Servicers for any Nonrecoverable Advance
previously
made, such right of reimbursement pursuant to this clause (iv)
being
limited first to amounts received on the Mortgage Loans serviced
by
such
Servicer in the same Loan Group as the Mortgage Loan(s) in respect
of
which such
Nonrecoverable Advance was made and then limited to amounts
received
on all the Mortgage Loans serviced by such Servicer (or, if
applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicers for Insured Expenses from the
related
Insurance
Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02, all
amounts
received
thereon after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred
by
any of
them and reimbursable pursuant to this Agreement, including but
not
limited
to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial
Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial
Account
upon
termination of this Agreement pursuant to Section 10.01.
(b) On each Distribution Date, funds on deposit in the
Distribution
Account and deemed to be on deposit in the
Middle-Tier Sub-Account shall be used
to make payments on the Class 1-A-MR
Certificate as provided in Sections 5.01
and 5.02. On each Distribution Date, funds
on deposit in the Distribution
Account and deemed to be on deposit in the
Upper-Tier Certificate Sub-Account
shall be used to make payments on the
Regular Certificates (other than the
Offered Group 4 Certificates) and the Class
1-A-R Certificate as provided in
Sections 5.01 and 5.02. On each
Distribution Date, funds on deposit in the
Distribution Account and deemed to be on
deposit in the Group 4 Upper-Tier
Certificate Sub-Account shall be used to
make payments on the Offered Group 4
Certificates, the Class 4-CE Certificates
and the Class 4-R Certificate as
provided in Section 5.03. The Distribution
Account shall be cleared and
terminated upon termination of this
Agreement pursuant to Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other
Insurance.
For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the
related Servicing Agreements to maintain
or cause to be maintained fire, flood and
hazard insurance with extended
coverage customary in the area where the
Mortgaged Property is located in
accordance with the related Servicing
Agreements. It is understood and agreed
that such insurance provided for in this
Section 3.13 shall be with insurers
meeting the eligibility requirements set
forth in the applicable Servicing
Agreement and that no earthquake or other
additional insurance is to be required
of any Mortgagor or to be maintained on
property acquired in respect of a
defaulted loan, other than pursuant to such
applicable laws and regulations as
shall at any time be in force and as shall
require such additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by
the
Master Servicer, or by any Servicer, under
any insurance policies (other than
amounts to be applied to the restoration or
repair of the property subject to
the related Mortgage or released to the
Mortgagor in accordance with the
applicable Servicing Agreement) shall be
deposited into the Master Servicer
Custodial Account, subject to withdrawal
pursuant to Section 3.12. Any cost
incurred by the Master Servicer or any
Servicer in maintaining any such
insurance if the Mortgagor defaults in its
obligation to do so shall be added to
the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so
permit; provided, however, that the
addition of any such cost shall not be taken
into account for purposes of calculating
the distributions to be made to
Certificateholders and shall be recoverable
by the Master Servicer or such
Servicer pursuant to Sections 3.08 and
3.09.
Section 3.14 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the
applicable
Servicing Agreement) cause the related
Servicer to prepare and present on behalf
of the Trustee and the Certificateholders
all claims under the Insurance
Policies and take such actions (including
the negotiation, settlement,
compromise or enforcement of the insured's
claim) as shall be necessary to
realize recovery under such policies. Any
proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in
respect of such policies, bonds or
contracts shall be promptly deposited in the
Master Servicer Custodial Account upon
receipt, except that any amounts realized
that are to be applied to the repair or
restoration of the related Mortgaged
Property as a condition precedent to the
presentation of claims on the related
Mortgage Loan to the insurer under any
applicable Insurance Policy need not be
so deposited (or remitted).
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the applicable Servicing Agreement and
to
the extent Mortgage Loans contain
enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to
enforce such clauses in accordance with
the applicable Servicing Agreement. If
applicable law prohibits the enforcement
of a due-on-sale clause or such clause is
otherwise not enforced in accordance
with the applicable Servicing Agreement,
and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be
released from liability in accordance
with the applicable Servicing
Agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Master Servicer shall cause each Servicer (to the
extent
required under the related Servicing
Agreement) to foreclose upon or otherwise
comparably convert the ownership of
Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in
default and as to which no
satisfactory arrangements can be made for
collection of delinquent payments, all
in accordance with the applicable Servicing
Agreement.
(b) With respect to any REO Property, the deed or certificate
of
sale shall be taken in the name of the
Trust for the benefit of the
Certificateholders, or its nominee, on
behalf of the Certificateholders. The
Master Servicer shall enforce the
obligation of the Servicers, to the extent
provided in the applicable Servicing
Agreement, to (i) cause name of the Trust
to be placed on the title to such REO
Property and (ii) ensure that the title to
such REO Property references this
Agreement. The Master Servicer shall, to the
extent provided in the applicable Servicing
Agreement, cause the applicable
Servicer to sell any REO Property as
expeditiously as possible and in accordance
with the provisions of this Agreement and
the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell
such REO Property, the Master
Servicer shall cause the applicable
Servicer to protect and conserve such REO
Property in the manner and to the extent
required by the applicable Servicing
Agreement, subject to the REMIC
Provisions.
(c) The Master Servicer shall, to the extent required by the
related
Servicing Agreement, cause the applicable
Servicer to deposit all funds
collected and received in connection with
the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any
REO
Property, shall be entitled to
reimbursement for any related unreimbursed
Periodic Advances and other unreimbursed
advances as well as any unpaid
Servicing Fees from Liquidation Proceeds
received in connection with the final
disposition of such REO Property; provided
that any such unreimbursed Periodic
Advances as well as any unpaid Servicing
Fees may be reimbursed or paid, as the
case may be, prior to final disposition,
out of any net rental income or other
net amounts derived from such REO
Property.
(e) The Liquidation Proceeds from the final disposition of the
REO
Property, net of any payment to the
applicable Servicer as provided above shall
be deposited in the related Servicer
Custodial Account on or prior to the
Determination Date in the month following
receipt thereof and be remitted by
wire transfer in immediately available
funds to the Master Servicer for deposit
into the related Master Servicer Custodial
Account.
In the event that the Trust Estate acquires any Mortgaged
Property
as aforesaid or otherwise in connection
with a default or imminent default on a
Mortgage Loan, the Master Servicer shall
enforce the obligation of the related
Servicer to dispose of such Mortgaged
Property within the time period specified
in the applicable Servicing Agreement
unless the Servicer shall have applied for
and received an extension of such period
from the Internal Revenue Service, in
which case the Trust Estate may continue to
hold such Mortgaged Property for the
period of such extension. Notwithstanding
any other provision of this Agreement,
no Mortgaged Property acquired by the Trust
shall be rented (or allowed to
continue to be rented) or otherwise used
for the production of income by or on
behalf of the Trust in such a manner or
pursuant to any terms that would (i)
cause such Mortgaged Property to fail to
qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of
the Code or (ii) subject any REMIC
created hereunder to the imposition of any
federal, state or local income taxes
on the income earned from such Mortgaged
Property under Section 860G(c) of the
Code or otherwise, unless the Master
Servicer or related Servicer, as
applicable, has agreed to indemnify and
hold harmless the Trust with respect to
the imposition of any such taxes.
(f) On the second Business Day prior to the related
Distribution
Date, the Master Servicer shall notify the
Depositor of any Mortgage Loan which
is 180 days or more delinquent. The
Depositor shall be entitled, at its option,
to repurchase any such delinquent Mortgage
Loan from the Trust Estate if in the
Depositor's judgment, the default is not
likely to be cured by the Mortgagor.
The purchase price for any such Mortgage
Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan
plus accrued interest thereon at the
Mortgage Interest Rate through the last day
of the month in which such
repurchase occurs. The Depositor shall
notify the related Servicer and the
Master Servicer of its intent to repurchase
such Mortgage Loan. Upon the receipt
of such purchase price, the Master Servicer
shall provide to the Trustee the
notification required by Section 3.17 and
the Trustee shall promptly release to
the Depositor the Mortgage File relating to
the Mortgage Loan being repurchased.
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the
Master Servicer or the related Servicer of
a notification that payment in full
will be escrowed in a manner customary for
such purposes, the Master Servicer or
the related Servicer will immediately
notify the Trustee by delivering, or
causing to be delivered, two copies (one of
which will be returned to the
Servicer with the Mortgage File) of a
Request for Release (which may be
delivered in an electronic format
acceptable to the Trustee, the related
Servicer and the Master Servicer). Upon
receipt of such request, the Trustee
shall within seven Business Days release
the related Mortgage File to the Master
Servicer or the related Servicer. The
Trustee shall at the Master Servicer's or
the related Servicer's direction execute
and deliver to the Master Servicer or
the related Servicer the request for
reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such
instrument releasing the lien of the
Mortgage, in each case provided by the
Master Servicer or the related Servicer,
together with the Mortgage Note with
written evidence of cancellation thereon.
If the Mortgage has been recorded in the
name of MERS or its designee, the
Master Servicer shall enforce the
applicable Servicer's obligation under the
related Servicing Agreement to take all
necessary action to reflect the release
of the Mortgage on the records of MERS.
Expenses incurred in connection with any
instrument of satisfaction or deed of
reconveyance shall be chargeable to the
related Mortgagor.
From time to time and as shall be appropriate for the servicing
or
foreclosure of any Mortgage Loan, including
for such purpose collection under
any policy of flood insurance, any fidelity
bond or errors or omissions policy,
or for the purposes of effecting a partial
release of any Mortgaged Property
from the lien of the Mortgage or the making
of any corrections to the Mortgage
Note or the Mortgage or any of the other
documents included in the Mortgage
File, the Trustee shall, upon delivery to
the Trustee of a Request for Release
signed by a Master Servicing Officer or a
Servicing Officer, release the
Mortgage File within seven Business Days to
the Master Servicer or the related
Servicer. Subject to the further
limitations set forth below, the Master
Servicer or the applicable Servicer shall
cause the Mortgage Files so released
to be returned to the Trustee when the need
therefor no longer exists, unless
the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the
applicable Servicer Custodial Account, in
which case such Servicer shall deliver
to the Trustee a Request for Release,
signed by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks
to
initiate a foreclosure proceeding in
respect of any Mortgaged Property as
authorized by this Agreement or the
Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause
to be delivered to the Trustee, for
signature, as appropriate, any court
pleadings, requests for trustee's sale or
other documents necessary to effectuate
such foreclosure or any legal action
brought to obtain judgment against the
Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment
or to enforce any other remedies or
rights provided by the Mortgage Note or the
Mortgage or otherwise available at
law or in equity.
Section 3.18 Documents, Records and Funds in Possession of the
Master Servicer to be Held for the
Trustee.
Notwithstanding any other provisions of this Agreement, the
Master
Servicer shall cause each Servicer to
transmit to the Trustee as required by
this Agreement and the Servicing Agreements
all documents and instruments in
respect of a Mortgage Loan coming into the
possession of the Servicer from time
to time and shall account fully to the
Trustee for any funds received by the
Master Servicer or the related Servicer or
which otherwise are collected by the
Master Servicer or the related Servicer as
Liquidation Proceeds, Recoveries or
Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control
of, the Master Servicer or the
related Servicer in respect of any Mortgage
Loans, whether from the collection
of principal and interest payments or from
Liquidation Proceeds, including but
not limited to, any funds on deposit in the
Master Servicer Custodial Account or
any Servicer Custodial Account, shall be
held by the Master Servicer or the
related Servicer for and on behalf of the
Trustee and shall be and remain the
sole and exclusive property of the Trustee,
subject to the applicable provisions
of this Agreement and the related Servicing
Agreement. The Master Servicer also
agrees that it shall not knowingly create,
incur or subject any Mortgage File or
any funds that are deposited in the Master
Servicer Custodial Account or any
Escrow Account, or any funds that otherwise
are or may become due or payable to
the Trustee for the benefit of the
Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of
attachment or other encumbrance
created by the Master Servicer, or assert
by legal action or otherwise any claim
or right of setoff against any Mortgage
File or any funds collected on, or in
connection with, a Mortgage Loan, except,
however, that the Master Servicer
shall be entitled to set off against and
deduct from any such funds any amounts
that are properly due and payable to the
Master Servicer under this Agreement.
Section 3.19 Master
Servicer Compensation.
Master servicing compensation in the form of Master Servicer
Custodial Account Reinvestment Income shall
be remitted to the Master Servicer
pursuant to Section 3.12. The Master
Servicer shall be required to pay all
expenses incurred by it in connection with
its master servicing activities
hereunder and shall not be entitled to
reimbursement therefor except as
specifically provided in this
Agreement.
Section 3.20 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Securities
Administrator
(and the Securities Administrator will
forward to the Trustee and each Rating
Agency), no later than March 15 following
the end of each calendar year
commencing with March 2005, an Officer's
Certificate, signed by two officers of
the Master Servicer, stating, as to the
signers thereof, that (a) a review of
the activities of the Master Servicer
during the preceding calendar year and of
the performance of the Master Servicer
under this Agreement or similar
agreements has been made under such
officer's supervision, and (b) to the best
of such officer's knowledge, based on such
review, the Master Servicer has
fulfilled all its obligations under this
Agreement throughout such year, or, if
there has been a default in the fulfillment
of any such obligation, specifying
each such default known to such officer and
the nature and status thereof.
In addition, the Master Servicer shall enforce each Servicer's
obligation under the related Servicing
Agreement to provide a similar statement
to the Securities Administrator relating to
compliance with the related
Servicing Agreement.
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The Master Servicer shall enforce each Servicer's obligation
under
the related Servicing Agreement to provide
a report to the Securities
Administrator, as required to be provided
each year pursuant to each Servicing
Agreement, prepared by a firm of
independent public accountants (who may also
render other services to such Servicer or
any affiliate thereof) which is a
member of the American Institute of
Certified Public Accountants to the effect
that such firm has, with respect to such
Servicer's overall servicing
operations, examined such operations in
accordance with the requirements of the
Uniform Single Attestation Program for
Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Section 3.22 Advances.
The Master Servicer shall enforce the obligations of each
Servicer
to make a Periodic Advance in accordance
with the applicable Servicing
Agreement. A Servicer shall be entitled to
be reimbursed from the applicable
Servicer Custodial Account for all Advances
of its own funds made pursuant to
the related Servicing Agreement. Based upon
information set forth in the
servicer reports, the Master Servicer shall
inform the Securities Administrator
of the amount of the Periodic Advance to be
made by a Servicer with respect to
each Loan Group no later than the related
Servicer Remittance Date. If a
Servicer fails to make any required
Periodic Advance pursuant to the related
Servicing Agreement, the Master Servicer
shall (i) unless the Master Servicer
determines that such Periodic Advance would
not be recoverable in its good faith
business judgment, make such Periodic
Advance not later than the Business Day
preceding the related Distribution Date and
(ii) to the extent such failure
leads to the termination of the Servicer
and until such time as a successor
Servicer is appointed, continue to make
Periodic Advances required pursuant to
the related Servicing Agreement for any
Distribution Date, within the same time
frame set forth in (i) above, unless the
Master Servicer determines (to the
extent provided in the related Servicing
Agreement) that such Periodic Advance
would not be recoverable; provided that if
the Servicer that fails to make such
Periodic Advance is Wells Fargo Bank, the
Trustee shall have such obligation to
make such Periodic Advance.
Section 3.23 Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and the Master Servicer shall
reasonably cooperate with the Depositor in
connection with the Trust's
satisfying its reporting requirements under
the Exchange Act. Without limiting
the generality of the foregoing, the
Securities Administrator shall prepare on
behalf of the Trust any monthly Current
Reports on Form 8-K (each, a "Monthly
Form 8-K") and Annual Reports on Form 10-K
(each, a "Form 10-K") customary for
similar securities as required by the
Exchange Act and the rules and regulations
of the Securities and Exchange Commission
thereunder, and the Securities
Administrator shall sign and file (via the
