EXHIBIT 4
==============================================================================
BANC OF AMERICA FUNDING CORPORATION,
as
Depositor,
WELLS FARGO BANK, N.A.,
as a Master Servicer and Securities Administrator,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Master Servicer and Representing Party,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
_______________________
Mortgage Pass-Through Certificates
Series 2004-D
==============================================================================
<PAGE>
TABLE OF CONTENTS
PRELIMINARY
STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
Section 1.02 Interest
Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans.................................
Section 2.02 Acceptance by the Trustee or
Custodian of the Mortgage
Loans.......................................................
Section 2.03 Representations, Warranties and
Covenants of the Master
Servicers...................................................
Section 2.04 Representations and Warranties as
to the Mortgage Loans......
Section 2.05 Designation of Interests in the
REMICs.......................
Section 2.06 Designation of Start-up
Day..................................
Section 2.07 REMIC Certificate Maturity
Date..............................
Section 2.08 Execution and Delivery of
Certificates.......................
Section 2.09 Repurchase of Converted Mortgage
Loans.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage
Loans.......................
Section 3.02 Monitoring of WF
Servicers...................................
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance................
Section 3.04 Access to Certain
Documentation..............................
Section 3.05 Maintenance of Primary Mortgage
Insurance Policy; Claims.....
Section 3.06 Rights of the Depositor, the
Securities Administrator and
the Trustee in Respect of the Master Servicers..............
Section 3.07 Trustee to Act as Master
Servicer............................
Section 3.08 Servicer Custodial Accounts and
Escrow Accounts..............
Section 3.09 Collection of Mortgage Loan
Payments; Master Servicer
Custodial Accounts and Certificate Account..................
Section 3.10 Access to Certain Documentation
and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the
Certificate Account, the
Master Servicer Custodial Accounts and the Servicer
Custodial Accounts..........................................
Section 3.12 Maintenance of Hazard Insurance
and Other Insurance..........
Section 3.13 Presentment of Claims and
Collection of Proceeds.............
Section 3.14 Enforcement of Due-On-Sale
Clauses; Assumption Agreements....
Section 3.15 Realization Upon Defaulted
Mortgage Loans; REO Property......
Section 3.16 Trustee to Cooperate; Release of
Mortgage Files..............
Section 3.17 Documents, Records and Funds in
Possession of the Master
Servicer to be Held for the Trustee.........................
Section 3.18 Master Servicer Compensation and
Servicer Compensation.......
Section 3.19 Annual Statement as to
Compliance............................
Section 3.20 Annual Independent Public
Accountants' Servicing
Statement; Financial Statements.............................
Section 3.21
Advances.....................................................
Section 3.22 Reports to the Securities and
Exchange Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's
Certificate................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02 Priorities of
Distributions..................................
Section 5.03 Allocation of
Losses.........................................
Section 5.04 Statements to
Certificateholders.............................
Section 5.05 Tax Returns and Reports to
Certificateholders................
Section 5.06 Tax Matters
Person...........................................
Section 5.07 Rights of the Tax Matters Person
in Respect of the
Securities Administrator....................................
Section 5.08 REMIC Related
Covenants......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02 Registration of Transfer and
Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or
Stolen Certificates............
Section 6.04 Persons Deemed
Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICERS
Section 7.01 Respective Liabilities of the
Depositor and the Master
Servicers...................................................
Section 7.02 Merger or Consolidation of the
Depositor or the Master
Servicers...................................................
Section 7.03 Limitation on Liability of the
Depositor, the Master
Servicers and Others........................................
Section 7.04 Depositor and Master Servicers Not
to Resign.................
Section 7.05 WMMSC Master Servicer's Covenant
Not to Solicit..............
Section 7.06 Covenant to Disclose Servicing
Deficiencies..................
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default............................................
Section 8.02 Remedies of
Trustee..........................................
Section 8.03 Directions by Certificateholders
and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of a
Master Servicer and
upon Event of Default.......................................
Section 8.05 Trustee to Act; Appointment of
Successor.....................
Section 8.06 Notification to
Certificateholders...........................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities
Administrator...............
Section 9.02 Certain Matters Affecting the
Trustee and the Securities
Administrator...............................................
Section 9.03 Neither Trustee nor Securities
Administrator Liable for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee and Securities
Administrator May Own Certificates....
Section 9.05 Eligibility Requirements for
Trustee and the Securities
Administrator...............................................
Section 9.06 Resignation and Removal of Trustee
and the Securities
Administrator...............................................
Section 9.07 Successor Trustee or Securities
Administrator................
Section 9.08 Merger or Consolidation of Trustee
or Securities
Administrator...............................................
Section 9.09 Appointment of Co-Trustee or
Separate Trustee................
Section 9.10 Authenticating
Agents........................................
Section 9.11 Securities Administrator's Fees
and Expenses and
Trustee's Fees and Expenses.................................
Section 9.12 Appointment of
Custodian.....................................
Section 9.13 Paying
Agents................................................
Section 9.14 Limitation of
Liability......................................
Section 9.15 Trustee or Securities
Administrator May Enforce Claims
Without Possession of Certificates..........................
Section 9.16 Suits for
Enforcement........................................
Section 9.17 Waiver of Bond
Requirement...................................
Section 9.18 Waiver of Inventory, Accounting
and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or
Liquidation of All Mortgage
Loans......................................................
Section 10.02 Additional Termination
Requirements.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment...................................................
Section 11.02 Recordation of Agreement;
Counterparts......................
Section 11.03 Limitation on Rights of
Certificateholders..................
Section 11.04 Governing
Law...............................................
Section 11.05
Notices.....................................................
Section 11.06 Severability of
Provisions..................................
Section 11.07 Certificates Nonassessable and
Fully Paid...................
Section 11.08 Access to List of
Certificateholders........................
Section 11.09
Recharacterization..........................................
EXHIBITS
--------
Exhibit A-1-A-1 Form of
Face of Class 1-A-1 Certificate
Exhibit A-1-A-R Form of
Face of Class 1-A-R Certificate
Exhibit A-1-A-LR Form of Face of
Class 1-A-LR Certificate
Exhibit A-2-A-1 Form of
Face of Class 2-A-1 Certificate
Exhibit A-3-A-1 Form of
Face of Class 3-A-1 Certificate
Exhibit A-4-A-1 Form of
Face of Class 4-A-1 Certificate
Exhibit A-5-A-1 Form of
Face of Class 5-A-1 Certificate
Exhibit A-5-A-2 Form of
Face of Class 5-A-2 Certificate
Exhibit B-1
Form of Face of Class B-1 Certificate
Exhibit B-2
Form of Face of Class B-2 Certificate
Exhibit B-3
Form of Face of Class B-3 Certificate
Exhibit B-4
Form of Face of Class B-4 Certificate
Exhibit B-5
Form of Face of Class B-5 Certificate
Exhibit B-6
Form of Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates
Exhibit D-1
Loan Group 1 Mortgage Loan Schedule
Exhibit D-2
Loan Group 2 Mortgage Loan Schedule
Exhibit D-3
Loan Group 3 Mortgage Loan Schedule
Exhibit D-4
Loan Group 4 Mortgage Loan Schedule
Exhibit D-5
Loan Group 5 Mortgage Loan Schedule
Exhibit E
Request for Release of Documents
Exhibit F
Form of Certification of Establishment of Account
Exhibit G-1
Form of Transferor's Certificate
Exhibit G-2A
Form 1 of Transferee's Certificate
Exhibit G-2B
Form 2 of Transferee's Certificate
Exhibit H
Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I
Form of Affidavit Regarding Transfer of Residual
Certificates
Exhibit J
[Reserved]
Exhibit K
[Reserved]
Exhibit L
List of Recordation States
Exhibit M
Form of Initial Certification
Exhibit N
Form of Final Certification
Exhibit O
Form of Certification
Exhibit P
Form of Securities Administrator's Certification
Exhibit Q
Form of WMMSC Master Servicer's Certification
Exhibit R
Form of WF Master
Servicer's Certification
Exhibit S
Form of Custodial Agreement
Exhibit T
Excerpts from S&P's LEVELS(R) Glossary
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2004,
is
hereby executed by and among BANC OF
AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and
assigns, the "Depositor"), WELLS
FARGO BANK, N.A., as a master servicer
(together with its permitted successors
and assigns, in such capacity, the "WF
Master Servicer") and as securities
administrator (together with its permitted
successors and assigns, in such
capacity, the "Securities Administrator"),
WASHINGTON MUTUAL MORTGAGE SECURITIES
CORP., as a master servicer (together with
its permitted successors and assigns,
in such capacity, the "WMMSC Master
Servicer" and together with the WF Master
Servicer, the "Master Servicers" and each,
a "Master Servicer") and as
representing party (together with its
permitted successors and assigns, in such
capacity, the "Representing Party") and
WACHOVIA BANK, NATIONAL ASSOCIATION, as
trustee (together with its permitted
successors and assigns, the "Trustee").
W I T N E S S E T H T
H A T:
- - - - - - - - - - -
- - -
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicers, the
Representing Party, the Securities
Administrator and the Trustee agree as
follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the
Trust. The Trust Estate for federal
income tax purposes will be treated as six
real estate mortgage investment
conduits (each, a "REMIC"). The WF Group 4
Call Right Mortgage Loans shall be
the assets of the WF Group 4 REMIC. The WF
Group 4 Regular Interest shall
constitute the "regular interest" and the
Class 1-LR-A Interest shall be the
"residual interest" in the WF Group 4
REMIC. The WF Remaining Call Right
Mortgage Loans shall be the assets of the
WF RCR REMIC. The WF RCR Regular
Interest shall constitute the "regular
interest" and the Class 1-LR-B Interest
shall be the "residual interest" in the WF
RCR REMIC. The Group 1 Mortgage Loans
shall be the assets of the WMMSC Group 1
REMIC. The WMMSC Group 1 Regular
Interest shall constitute the "regular
interest" and the Class 1-LR-C Interest
shall be the "residual interest" in the
WMMSC Group 1 REMIC. The WMMSC Group 4
Call Right Mortgage Loans shall be the
assets of the WMMSC Group 4 REMIC. The
WMMSC Group 4 Regular Interest shall
constitute the "regular interest" and the
Class 1-LR-D Interest shall be the
"residual interest" in the WMMSC Group 4
REMIC. The WF Group 4 Regular Interest, the
WF RCR Regular Interest, the WMMSC
Group 1 Regular Interest and the WMMSC
Group 4 Regular Interest shall be the
assets of the Pooling REMIC. The
Uncertificated Pooling REMIC Interests shall
constitute the "regular interests" and the
Class 1-LR-E Interest shall be the
"residual interest in the Pooling REMIC.
The Uncertificated Pooling REMIC
Interests shall constitute the assets of
the Upper-Tier REMIC. The Senior
Certificates (other than the Class 1-A-R
and Class 1-A-LR Certificates) and the
Class B Certificates are referred to
collectively as the "Regular Certificates"
and shall constitute "regular interests" in
the Upper-Tier REMIC. The Class
1-A-R Certificate shall be the "residual
interest" in the Upper-Tier REMIC. The
Class 1-A-LR Certificate will represent
ownership of the Class 1-LR-A Interest,
the Class 1-LR-B Interest, the Class 1-LR-C
Interest, the Class 1-LR-D Interest
and the Class 1-LR-E Interest. The
Certificates, the Uncertificated Pooling
REMIC Interests and the Uncertificated
Group REMIC Interests will represent the
entire beneficial ownership interest in the
Trust. The "latest possible maturity
date" for federal income tax purposes of
all interests created hereby will be
the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the
Certificates,
together with the minimum denominations and
integral multiples in excess thereof
in which the Classes of Certificates shall
be issuable:
<PAGE>
<TABLE>
<CAPTION>
===========================
================================= ======================
======================= ======================
Integral Multiples
Initial Class Certificate
Minimum
in Excess
Classes
Balance
Pass-Through Rate
Denomination
of Minimum
---------------------------
--------------------------------- ----------------------
----------------------- ----------------------
<S>
<C>
<C>
<C>
<C>
Class 1-A-1
$106,410,000.00
(1)
$1,000
$1
Class 1-A-R
$50.00
(1)
$50
N/A
Class 1-A-LR
$50.00
(1)
$50
N/A
Class 2-A-1
$47,696,000.00
(2)
$1,000
$1
Class 3-A-1
$42,331,000.00
(3)
$1,000
$1
Class 4-A-1
$32,434,000.00
(4)
$1,000
$1
Class 5-A-1
$137,921,000.00
(5)
$1,000
$1
Class 5-A-2
$3,082,000.00
(5)
$1,000
$1
Class B-1
$5,389,000.00
(6)
$25,000
$1
Class B-2
$3,848,000.00
(6)
$25,000
$1
Class B-3
$2,117,000.00
(6)
$25,000
$1
Class B-4
$1,155,000.00
(6)
$25,000
$1
Class B-5
$770,000.00
(6)
$25,000
$1
Class B-6
$1,732,237.00
(6)
$25,000
$1
---------------------------
--------------------------------- ----------------------
----------------------- ----------------------
</TABLE>
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(1) For each Distribution Date,
interest will accrue on these Certificates at
a per
annum rate equal to the Net WAC for the Group 1 Mortgage Loans.
(2) For each Distribution Date,
interest will accrue on these Certificates at
a per
annum rate equal to the Net WAC for the Group 2 Mortgage Loans.
(3) For each Distribution Date,
interest will accrue on these Certificates at
a per
annum rate equal to the Net WAC for the Group 3 Mortgage Loans.
(4) For each Distribution Date,
interest will accrue on these Certificates at
a per
annum rate equal to the Net WAC for the Group 4 Mortgage Loans.
(5) For each Distribution Date,
interest will accrue on these Certificates at
a per
annum rate equal to the Net WAC for the Group 5 Mortgage Loans.
(6) Interest will accrue on
these Certificates as of any Distribution Date at
a per
annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of the Net WAC for each of
the
Group 1,
Group 2, Group 3, Group 4 and Group 5 Mortgage Loans.
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class, one month's
interest accrued during the related Interest
Accrual Period at the applicable
Pass-Through Rate on the applicable Class
Certificate Balance.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-off Date Pool Principal
Balance of the Mortgage Loans in such
Loan Group minus the sum of (i) all amounts
in respect of principal received in
respect of the Mortgage Loans in such Loan
Group (including, without limitation,
amounts received as Monthly Payments, WF
Servicer Periodic Advances, WMMSC
Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates of the
Related Group on such Distribution Date and
all prior Distribution Dates and
(ii) the principal portion of all Realized
Losses (other than Debt Service
Reductions) incurred on the Mortgage Loans
in such Loan Group from the Cut-off
Date through the end of the month preceding
such Distribution Date.
Administrative Fee Rate: With respect to each Mortgage Loan, the
sum
of (i) the Servicing Fee Rate, (ii) solely
with respect to the WMMSC Master
Serviced Loans, the WMMSC Master Servicing
Fee Rate and (iii) the Securities
Administrator Fee Rate.
Advance: A WMMSC Advance, a WF Servicer Periodic Advance or a
WF
Servicer Servicing Advance.
Advance Date: As to any Distribution Date and (a) the WF Master
Serviced Loans, the Business Day preceding
the related Remittance Date and (b)
the WMMSC Master Serviced Loans, 11:30
a.m., Eastern time, on the Business Day
immediately preceding such Distribution
Date.
Aggregate Senior Percentage: With respect to any Distribution
Date,
the percentage, carried six places rounded
up, obtained by dividing the
aggregate Class Certificate Balance of the
Senior Certificates by the aggregate
Pool Stated Principal Balance of all the
Loan Groups.
Aggregate Subordinate Percentage: As to any Distribution Date,
the
aggregate Class Certificate Balance of the
Subordinate Certificates divided by
the aggregate Pool Stated Principal Balance
for all the Loan Groups.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Amounts Held for Future Distribution: As to any Distribution
Date
and Loan Group, the total of the amounts
held in the WMMSC Master Servicer
Custodial Account at the close of business
on the preceding Determination Date
on account of (i) Payoffs received after
the Payoff Period related to such
Distribution Date, (ii) Curtailments
received or made in the month of such
Distribution Date, (iii) Liquidation
Proceeds received or made on the WMMSC
Master Serviced Loans in such Loan Group in
the month of such Distribution Date
and (iv) payments which represent receipt
of Monthly Payments made on the WMMSC
Master Serviced Loans in such Loan Group in
respect of a Due Date or Due Dates
subsequent to the related Due Date.
Ancillary Income: All prepayment premiums (if any), assumption
fees,
late payment charges and all other
ancillary income and fees with respect to the
Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value
determined in an appraisal obtained by the
originator at origination of such Mortgage
Loan or, in certain cases, an
automated valuation model or tax assessed
value and (b) the sales price for such
property, except that, in the case of
Mortgage Loans the proceeds of which were
used to refinance an existing mortgage
loan, the Appraised Value of the related
Mortgaged Property is the appraised value
thereof determined in an appraisal
obtained at the time of refinancing or, in
certain cases, an automated valuation
model or tax assessed value, or (ii) the
appraised value determined in an
appraisal made at the request of a
Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to
keep a Primary Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument
in recordable form, sufficient under
the laws of the jurisdiction wherein the
related Mortgaged Property is located
to give record notice of the sale of the
Mortgage.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in
interest.
BANA Servicing Agreement: The Servicing Agreement, dated
December
29, 2004, by and between BAFC, as
depositor, and BANA, as servicer.
Book-Entry Certificate: All Classes of Certificates other than
the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the
State of Illinois, the State of North
Carolina, the State of New York, the State
of Minnesota, the State of Maryland,
the State of Washington, the states in
which the master servicing offices of
either Master Servicer is located or the
state or states in which the Corporate
Trust Offices of the Trustee and the
Securities Administrator are located are
required or authorized by law or executive
order to be closed.
Calculated Principal Distribution: As defined in Section
5.03(d).
Call Right Holder: Each of the WF Master Servicer and the WMMSC
Master Servicer, in respect of their right
to purchase certain groups of
Mortgage Loans as set forth in Section
10.01.
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2004-D
that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to
Section 3.09(a) in the name of the
Securities Administrator, on behalf of the
Trustee, for the benefit of the
Certificateholders and designated "Wells
Fargo Bank, N.A., as Securities
Administrator for Wachovia Bank, National
Association, as Trustee, in trust for
registered holders of Banc of America
Funding Corporation Mortgage Pass-Through
Certificates, Series 2004-D." The
Certificate Account shall be deemed to consist
of six sub-accounts; one for each of (i)
the WF Group 4 Call Right Mortgage
Loans ("Sub-Account WF-4"), (ii) the Group
2, Group 3 and Group 5 Mortgage Loans
("Sub-Account WF-RCR"), (iii) the Group 1
Mortgage Loans ("Sub-Account
WMMSC-1"), (iv) the WMMSC Group 4 Call
Right Mortgage Loans ("Sub-Account
WMMSC-4"), ((i) through (iv) collectively,
the "Group REMIC Sub-Accounts"), and
the sub-accounts referred to herein as the
Pooling REMIC Sub-Account and the
Upper-Tier Certificate Sub-Account. Funds
in the Certificate Account shall be
held in trust for the Holders of the
Certificates for the uses and purposes set
forth in this Agreement.
Certificate Balance: With respect to any Certificate at any
date,
the maximum dollar amount of principal to
which the Holder thereof is then
entitled hereunder, such amount being equal
to the product of the Percentage
Interest of such Certificate and the Class
Certificate Balance of the Class of
Certificates of which such Certificate is a
part.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable
to the Depository and selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a
Book-Entry Certificate. With respect to
any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor, the Master Servicers
or any affiliate thereof shall be
deemed not to be outstanding and the
Percentage Interest and Voting Rights
evidenced thereby shall not be taken into
account in determining whether the
requisite amount of Percentage Interests or
Voting Rights, as the case may be,
necessary to effect any such consent has
been obtained, unless such entity is
the registered owner of the entire Class of
Certificates, provided that the
Securities Administrator shall not be
responsible for knowing that any
Certificate is registered in the name of an
affiliate of the Depositor or the
Master Servicers unless one of its
Responsible Officers has actual knowledge
thereof.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-R,
Class
1-A-LR, Class 2-A-1, Class 3-A-1, Class
4-A-1, Class 5-A-1, Class 5-A-2, Class
B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates, as
the case may be.
Class 5-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date,
the amount, if any, by which the Class
Certificate Balance of the Class 5-A-1
Certificates would be reduced as a result
of the allocation of any reduction pursuant
to Section 5.03(b) to such Class,
without regard to the operation of Section
5.03(e).
Class 5-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support
Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 5-A-2
Certificates with respect to such
Distribution Date prior to any reduction
for the Class 5-A-2 Loss Allocation
Amount and (b) the Class 5-A-1 Loss Amount
with respect to such Distribution
Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6
Certificates.
Class Certificate Balance: With respect to any Class and any date
of
determination, and subject to Section
5.03(f), the Initial Class Certificate
Balance of such Class minus (A) the sum of
(i) all distributions of principal
made with respect thereto, (ii) all
reductions in Class Certificate Balance
previously allocated thereto pursuant to
Section 5.03(b) and (iii) in the case
of the Class 5-A-2 Certificates, any
reduction allocated thereto pursuant to
Section 5.03(e) plus (B) the sum of (i) all
increases in Class Certificate
Balance previously allocated thereto
pursuant to Section 5.03(b) and (ii) in the
case of the Class 5-A-2 Certificates, any
increases allocated thereto pursuant
to Section 5.03(e).
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which
Accrued Certificate Interest for
such Class (as reduced pursuant to Section
5.02(c)) exceeds the amount of
interest actually distributed on such Class
on such Distribution Date pursuant
to clause (i) of the definition of
"Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class, the amount by
which the aggregate Class Interest
Shortfalls for such Class on prior
Distribution Dates exceeds the amount of
interest actually distributed on such Class
on such prior Distribution Dates
pursuant to clause (ii) of the definition
of "Interest Distribution Amount."
Closing Date: December 29, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to each Distribution Date,
the
sum of (i) the sum of the WF Compensating
Interest for each WF Servicer and (ii)
the WMMSC Compensating Interest. To the
extent that the aggregate Prepayment
Interest Shortfall for a Distribution Date
exceeds Compensating Interest, the
Compensating Interest for such Distribution
Date shall be allocated among the
Loan Groups in proportion to the respective
Prepayment Interest Shortfalls
relating to such Loan Groups.
Conversion Date: The date on which a Mortgage Loan becomes a
Converted Mortgage Loan.
Converted Mortgage Loan: Any Mortgage Loan as to which the
related
Mortgagor has exercised its option pursuant
to the related Mortgage Note to
convert the adjustable rate of interest on
such Mortgage Loan to a fixed rate of
interest.
Cooperative: A private, cooperative housing corporation which
owns
or leases land and all or part of a
building or buildings, including apartments,
spaces used for commercial purposes and
common areas therein and whose board of
directors authorizes, among other things,
the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling
building
owned or leased by a Cooperative, which
unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a
proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement
with respect to the Cooperative
Apartment occupied by the Mortgagor and
relating to the related Cooperative
Stock, which lease or agreement confers an
exclusive right to the holder of such
Cooperative Stock to occupy such
apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of
a
Cooperative Apartment, evidenced by a
Mortgage Note and secured by (i) a
Security Agreement, (ii) the related
Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative
Lease, (iv) financing statements and
(v) a stock power (or other similar
instrument), and ancillary thereto, a
Recognition Agreement, each of which was
transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the
single
outstanding class of stock, partnership
interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative
Loan,
the stock certificate or other instrument
evidencing the related Cooperative
Stock.
Corporate Trust Office: With respect to the Trustee, the
principal
office of the Trustee, which office at the
date of the execution of this
instrument is located at 401 South Tryon
Street, Charlotte, North Carolina,
28288-1179 Attention: Structured Finance
Trust Services, BAFC, Series 2004-D, or
at such other address as the Trustee may
designate from time to time by notice
to the Certificateholders, the Depositor,
the Securities Administrator and the
Master Servicers. With respect to the
Securities Administrator, the principal
corporate trust office of the Securities
Administrator at which at any
particular time its corporate trust
business with respect to this Agreement is
conducted, which office at the date of the
execution of this instrument is
located at 9062 Old Annapolis Road,
Columbia, Maryland 21045-1951, Attention:
Corporate Trust Services - BAFC 2004-D, and
for certificate transfer purposes is
located at Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479,
Attention: Corporate Trust Services - BAFC
2004-D, or at such other address as
the Securities Administrator may designate
from time to time by notice to the
Certificateholders, the Depositor, the
Trustee and the Master Servicers.
Curtailment: Any payment of principal on a WMMSC Master
Serviced
Loan, made by or on behalf of the related
Mortgagor, other than a Monthly
Payment, a Prepaid Monthly Payment or a
Payoff, which is applied to reduce the
outstanding principal balance of such WMMSC
Master Serviced Loan.
Custodial Agreement: Initially, the Custodial Agreement, dated
December 29, 2004, by and among the
Trustee, the Depositor, WMMSC and U.S. Bank
National Association, which agreement is
attached hereto as Exhibit S, and
thereafter any custodial agreement entered
into pursuant to Section 9.12.
Custodian: Initially (i) with respect to the WMMSC Master
Serviced
Loans, U.S. Bank National Association, as
Custodian, and (ii) with respect to
the WF Master Serviced Loans, the Trustee
and thereafter the Custodian or
Custodians, if any, hereafter appointed by
the Trustee pursuant to Section 9.12.
A Custodian may (but need not) be the
Trustee or any Person directly or
indirectly controlling or controlled by or
under common control of either of
them. None of the Master Servicers, any
Servicer or the Depositor, or any Person
directly or indirectly controlling or
controlled by or under common control with
any such Person may be appointed
Custodian.
Customary Servicing Procedures: With respect to (i) the WMMSC
Master
Servicer or any Servicer, procedures
(including collection procedures) that the
WMMSC Master Servicer or a Servicer
customarily employs and exercises in
servicing and administering mortgage loans
for its own account and which are in
accordance with accepted mortgage servicing
practices of prudent lending
institutions servicing mortgage loans of
the same type as the Mortgage Loans in
the jurisdictions in which the related
Mortgaged Properties are located and (ii)
with respect to the WF Master Servicer,
those master servicing procedures that
constitute customary and usual standards of
practice of prudent mortgage loan
master servicers.
Cut-off Date: December 1, 2004.
Cut-off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-off Date Principal
Balances of the Mortgage Loans in such
Loan Group which is $110,728,575.34 for
Loan Group 1, $49,631,666.80 for Loan
Group 2, $44,049,379.28 for Loan Group 3,
$33,750,486.76 for Loan Group 4 and
$146,725,229.31 for Loan Group 5.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close
of business on the Cut-off Date,
reduced by all installments of principal
due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the
Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan
over (ii) the amount of the monthly
payment of principal and/or interest
required to be paid with respect to such
Due Date by the Mortgagor as established by
a court of competent jurisdiction
(pursuant to an order which has become
final and nonappealable) as a result of a
proceeding initiated by or against the
related Mortgagor under the Bankruptcy
Code, as amended from time to time (11
U.S.C.); provided that no such excess
shall be considered a Debt Service
Reduction so long as (a) the Servicer of such
Mortgage Loan is pursuing an appeal of the
court order giving rise to any such
modification and (b)(1) such Mortgage Loan
is not in default with respect to
payment due thereunder in accordance with
the terms of such Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly
Payments are being advanced by the
applicable Servicer, the WMMSC Master
Servicer, the WF Master Servicer or the
Trustee, as applicable, in accordance with
the terms of such Mortgage Loan as in
effect on the Cut-off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service
Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for
pursuant to Sections 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then
outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation
thereof established by a court of competent
jurisdiction (pursuant to an order which
has become final and nonappealable) as
a result of a proceeding initiated by or
against the related Mortgagor under the
Bankruptcy Code, as amended from time to
time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged
Property; provided that no such excess
shall be considered a Deficient Valuation
so long as (a) the applicable Servicer
is pursuing an appeal of the court order
giving rise to any such modification
and (b)(1) such Mortgage Loan is not in
default with respect to payments due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the applicable
Servicer, the WMMSC Master Servicer, the WF
Master Servicer or the Trustee, as
applicable, in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest,
as depositor of the Trust Estate.
Depositor Indemnified Parties: As defined in Section 3.23(c).
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of
the Book-Entry Certificates or any
successor thereto appointed in accordance
with this Agreement. The Depository
shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: With respect to any Distribution Date and
(a)
each WF Master Serviced Loan, as defined in
the applicable Servicing Agreement
and (b) each WMMSC Master Serviced Loan, a
day not later than the 10th day
preceding such Distribution Date, as
determined by the WMMSC Master Servicer.
Distribution Date: The 25th day of each month beginning in
January
2005 (or, if such day is not a Business
Day, the next Business Day).
Document Transfer Event: The 60th day following the day on
which
either (i) Wells Fargo Bank is no longer
the Servicer of any of the Mortgage
Loans purchased by the Seller pursuant to
the Wells Fargo Sale Agreements or
(ii) the senior, unsecured long-term debt
rating of Wells Fargo & Company is
less than "BBB-" by Fitch Ratings.
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such
Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
a federal or state chartered depository
institution or trust company the
short-term unsecured debt obligations of
which (or, in the case of a depository
institution or trust company that is the
principal subsidiary of a holding
company, the debt obligations of such
holding company) have the highest
short-term ratings of each Rating Agency at
the time any amounts are held on
deposit therein, or (ii) an account or
accounts in a depository institution or
trust company in which such accounts are
insured by the FDIC (to the limits
established by the FDIC) and the uninsured
deposits in which accounts are
otherwise secured such that, as evidenced
by an Opinion of Counsel delivered to
the Trustee, the Securities Administrator
and to each Rating Agency, the
Certificateholders have a claim with
respect to the funds in such account or a
perfected first priority security interest
against any collateral (which shall
be limited to Permitted Investments)
securing such funds that is superior to
claims of any other depositors or creditors
of the depository institution or
trust company in which such account is
maintained, or (iii) a trust account or
accounts maintained with the trust
department of a federal or state chartered
depository institution or trust company
(including the Trustee and the
Securities Administrator), acting in its
fiduciary capacity or (iv) any other
account acceptable to each Rating Agency.
Eligible Accounts may bear interest
and may include, if otherwise qualified
under this definition, accounts
maintained with the Trustee or the
Securities Administrator. Notwithstanding
anything in the foregoing to the contrary,
an account shall not fail to be an
Eligible Account solely because it is
maintained with Wells Fargo Bank, N.A., a
wholly owned subsidiary of Wells Fargo
& Co., provided that such subsidiary or
its parent's (A) commercial paper,
short-term unsecured debt obligations or
other short-term deposits are at least
"P-1" in the case of Moody's and "A-1+"
in the case of S&P, if the deposits are
to be held in the account for 30 days or
less, or (B) long-term unsecured debt
obligations are rated at least "Aa3" in
the case of Moody's and "AA-" (or "A"
(without regard to any plus or minus), if
the short-term unsecured debt obligations
are rated at least "A-1+") in the case
of S&P, if the deposits are to be held
in the account for more than 30 days.
Eligible Institution: An institution having (i) the highest
short-term debt rating, and one of the two
highest long-term debt ratings of the
Rating Agencies, (ii) with respect to any
WMMSC Master Servicer Custodial
Account and WMMSC Escrow Account, an
unsecured long-term debt rating of at least
one of the two highest unsecured long-term
debt ratings of the Rating Agencies,
or (iii) the approval of the Rating
Agencies. Such institution may be the WMMSC
Servicer if the applicable Servicing
Contract requires the WMMSC Servicer to
provide the WMMSC Master Servicer with
written notice on the Business Day
following the date on which the WMMSC
Servicer determines that such WMMSC
Servicer's short-term debt and unsecured
long-term debt ratings fail to meet the
requirements of the prior sentence.
Notwithstanding the foregoing, Washington
Mutual Bank, FA shall be an "Eligible
Institution" if the following conditions
are satisfied: (i) Washington Mutual Bank,
FA is acting as WMMSC Servicer, (ii)
if S&P is a Rating Agency as defined
herein, the long-term unsecured debt
obligations of Washington Mutual Bank, FA
are rated no lower than "A-" by S&P
and the short-term unsecured debt
obligations of Washington Mutual Bank, FA are
rated no lower than "A-2" by S&P and
(iii) if Moody's is a Rating Agency as
defined herein, the long-term unsecured
debt obligations of Washington Mutual
Bank, FA are rated no lower than "A2" by
Moody's and the short-term unsecured
debt obligations of Washington Mutual Bank,
FA are rated no lower than "P-1" by
Moody's; provided, that if the long-term or
short-term unsecured debt
obligations of Washington Mutual Bank, FA
are downgraded by any of the Rating
Agencies to a rating lower than the
applicable rating specified in this
sentence, Washington Mutual Bank, FA shall
cease to be an "Eligible Institution"
five Business Days after notification of
such downgrade.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Subordinate Certificate.
Escrow Account: A WF Escrow Account or WMMSC Escrow Account.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums,
fire and hazard insurance premiums
and other payments as may be required to be
escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any
Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
applicable Servicer or the WMMSC Master
Servicer, as applicable, as
Nonrecoverable Advance(s) with respect to
such Mortgage Loan pursuant to Section
3.11(a)(iv) or Section 3.11(b)(iv), exceeds
(i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
Date in the month in which such
Mortgage Loan became a Liquidated Mortgage
Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due
Date as to which interest was last paid
or for which an Advance (other than a WF
Servicer Servicing Advance) was made
(and not reimbursed) up to the Due Date
applicable to the Distribution Date
immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHA: Federal Housing Administration, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates
will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated
by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K: As defined in Section 3.23.
Fractional Interest: As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage
set
forth in the related Mortgage Note and
indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is
added to the Index on each Rate
Adjustment Date to determine (subject to
rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such
Mortgage Loan until the next Rate
Adjustment Date.
Group: Any of Group 1, Group 2, Group 3, Group 4 or Group 5.
Group 1: The Group 1 Senior Certificates.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-R and Class
1-A-LR Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Senior Certificates: Class 2-A-1 Certificates.
Group 3: The Group 3 Senior Certificates.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Senior Certificates: Class 3-A-1 Certificates.
Group 4: The Group 4 Senior Certificates.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Senior Certificates: Class 4-A-1 Certificates.
Group 5: The Group 5 Senior Certificates.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Group 5 Senior Certificates: Class 5-A-1 and Class 5-A-2
Certificates.
Group REMIC: Any of the WF Group 4 REMIC, WF RCR REMIC, WMMSC
Group
1 REMIC and WMMSC Group 4 REMIC, as
described in the Preliminary Statement.
Group Subordinate Amount: With respect to any Distribution Date
and
any Loan Group, the excess of the Pool
Stated Principal Balance for such Loan
Group over the aggregate Class Certificate
Balance of the Senior Certificates of
the Related Group immediately prior to such
date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact
independent of the Depositor and the Master
Servicers, (ii) does not have any direct
financial interest or any material
indirect financial interest in the
Depositor and the Master Servicers or in an
affiliate of any of them, and (iii) is not
connected with the Depositor or the
Master Servicers as an officer, employee,
promoter, underwriter, trustee,
partner, director or person performing
similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of
the
One-Year CMT Index or the One-Year LIBOR
Index. The Index applicable to each
Mortgage Loan will be indicated on the
Mortgage Loan Schedule. In the event that
any such Index is no longer available, the
applicable Servicer will select a
substitute Index in accordance with the
terms of the related Mortgage Note and
in compliance with federal and state
law.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance set forth in
the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any Primary Mortgage
Insurance Policy or any other insurance
policy (including any policy covering any
Mortgage Loan or Mortgaged Property,
including without limitation, any hazard
insurance policy required pursuant to
Section 3.12, any title insurance policy
described in Section 2.04 and any FHA
insurance policies and VA insurance
policies), including all riders and
endorsements thereto in effect, including
any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the
Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Certificates, the period from and
including the first day of the calendar
month preceding the calendar month of such
Distribution Date to but not
including the first day of the calendar
month of such Distribution Date.
Interest Distribution Amount: For any Distribution Date and
each
interest-bearing Class, the sum of (i) the
Accrued Certificate Interest, subject
to reduction pursuant to Section 5.02(c)
and (ii) any Class Unpaid Interest
Shortfall for such Class.
Investment Depository: JPMorgan Chase Bank, or another bank or
trust
company designated from time to time by the
WMMSC Master Servicer. The
Investment Depository shall at all times be
an Eligible Institution.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO
Property) that was liquidated in the
Prior Period and as to which the applicable
WF Servicer has certified (in
accordance with the applicable Servicing
Agreement) or the WMMSC Master Servicer
has determined in accordance with its
Customary Servicing Procedures that it has
received all proceeds it expects to receive
in connection with the liquidation
of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or
complete liquidation of defaulted
Mortgage Loans, whether through trustee's
sale, foreclosure sale or otherwise or
amounts received in connection with any
condemnation or partial release of a
Mortgaged Property and any other proceeds
received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees, WMMSC Master
Servicing Fees and Advances and, in the
case of the WMMSC Master Servicer or the
WMMSC Servicer, amounts reimbursable under
Section 3.11(a)(ii).
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3,
Loan
Group 4 or Loan Group 5.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan Group 5: The Group 5 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed
as a percentage, the numerator of
which is the outstanding principal balance
of the related Mortgage Loan at
origination and the denominator of which is
the Appraised Value of the related
Mortgaged Property.
Lower-Tier REMICs: The Group REMICs and the Pooling REMIC.
Master Servicer: Either of the WF Master Servicer or the WMMSC
Master Servicer.
Master Servicer's Certificate: The monthly report required of
each
Master Servicer pursuant to Section
4.01.
Master Servicer Custodial Account: Either of the WF Master
Servicer
Custodial Account or the WMMSC Master
Servicer Custodial Account.
Master Servicer Custodial Account Reinvestment Income: Either of
the
WF Master Servicer Custodial Account
Reinvestment Income or the WMMSC Master
Servicer Custodial Account Reinvestment
Income.
Master Servicing Officer: With respect to each Master Servicer,
any
officer of such Master Servicer involved
in, or responsible for, the
administration and master servicing of the
Mortgage Loans whose name appears on
a list of servicing officers furnished to
the Securities Administrator by the
related Master Servicer, as such list may
from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and
expenses
(including attorney's fees) incurred by the
Trustee or a successor master
servicer in connection with the transfer of
master servicing or servicing from a
predecessor master servicer, including,
without limitation, any costs or
expenses associated with the complete
transfer of all master servicing data or
servicing data and the completion,
correction or manipulation of such master
servicing data or servicing data as may be
required by the Trustee or successor
master servicer to correct any errors or
insufficiencies in the master servicing
data or servicing data or otherwise to
enable the Trustee or a successor master
servicer to master service or service, as
the case may be, the applicable
Mortgage Loans properly and
effectively.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23.
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified herein,
shall give effect to any related Debt
Service Reduction and any Deficient
Valuation that affects the amount of the
monthly payment due on such Mortgage
Loan.
Moody's: Moody's Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing
a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to the Mortgage File pursuant
to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on
the principal balance of such Mortgage
Loan, as adjusted from time to time in
accordance with the provisions of the
related Mortgage Note, which rate is (a)
prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial
Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage
Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the
applicable Index, as of the Rate
Adjustment Date applicable to such Due
Date, and the Gross Margin, rounded as
set forth in such Mortgage Note, subject to
the Periodic Cap and the Rate
Ceiling applicable to such Mortgage Loan at
any time during the life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 29, 2004, between
BANA, as seller, and the Depositor,
as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the related Master Servicer
to reflect the addition of
Substitute Mortgage Loans and the deletion
of Defective Mortgage Loans pursuant
to the provisions of this Agreement)
transferred to the Trustee as part of the
Trust Estate and from time to time subject
to this Agreement, attached hereto as
Exhibit D-1, Exhibit D-2, Exhibit D-3,
Exhibit D-4 and Exhibit D-5, setting
forth the following information with
respect to each Mortgage Loan: (i) the
Mortgage Loan identifying number; (ii) a
code indicating whether the Mortgaged
Property is owner-occupied; (iii) the
property type for each Mortgaged Property;
(iv) the original months to maturity or the
remaining months to maturity from
the Cut-off Date; (v) the Loan-to-Value
Ratio at origination; (vi) the Mortgage
Interest Rate as of the Cut-off Date; (vii)
the date on which the first Monthly
Payment was due on the Mortgage Loan, and,
if such date is not the Due Date
currently in effect, such Due Date; (viii)
the stated maturity date; (ix) the
amount of the Monthly Payment as of the
Cut-off Date; (x) the paid-through date;
(xi) the original principal amount of the
Mortgage Loan; (xii) the principal
balance of the Mortgage Loan as of the
close of business on the Cut-off Date,
after application of payments of principal
due on or before the Cut-off Date,
whether or not collected, and after
deduction of any payments collected of
scheduled principal due after the Cut-off
Date; (xiii) a code indicating the
purpose of the Mortgage Loan; (xiv) a code
indicating the documentation style;
(xv) whether such Mortgage Loan is a
Convertible Mortgage Loan; (xvi) the
Appraised Value; (xvii) the first Rate
Adjustment Date; (xviii) the Rate
Ceiling; (xix) the Periodic Cap; (xx) the
Gross Margin; (xxi) the closing date
of such Mortgage Loan; (xxii) the
Originator of such Mortgage Loan; (xxiii) the
Servicer of such Mortgage Loan as of the
Cut-off Date; and (xxiv) the Master
Servicer of such Mortgage Loan. With
respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall
set forth the following information,
as of the Cut-off Date: (i) the number of
Mortgage Loans; (ii) the current
aggregate outstanding principal balance of
the Mortgage Loans; (iii) the
weighted average Mortgage Interest Rate of
the Mortgage Loans; and (iv) the
weighted average months to maturity of the
Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as
from time to time are held as a part
of the Trust Estate (including any
Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being
identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence
of
indebtedness evidencing the indebtedness of
a Mortgagor under a Mortgage Loan,
together with all riders thereto and
amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Cooperative Stock
or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage
Interest Rate thereon on the first day of
the month preceding the month of the
related Distribution Date reduced by the
applicable Administrative Fee Rate for such
Mortgage Loans.
Net WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage
Interest Rates of the Mortgage Loans in
such Loan Group (based on Stated Principal
Balances of the Mortgage Loans in
such Loan Group on the Due Date in the
month preceding the month of such
Distribution Date).
Non-Supported Interest Shortfalls: As to any Distribution Date,
the
amount, if any, by which the aggregate of
Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution
Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a
Mortgage Loan which has not been previously
reimbursed and which, in the good faith
judgment of the applicable Servicer or
the WMMSC Master Servicer, as applicable,
will not or, in the case of a proposed
Advance, would not be ultimately
recoverable from the related Mortgagor, related
Liquidation Proceeds, Insurance Proceeds or
other recoveries in respect of the
related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and the Class
B-1,
Class B-2 and Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board,
President or a Vice President and by the
Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant
Secretaries, or any other duly authorized
officer of the Depositor or the Master
Servicers, as the case may be, and
delivered to the Trustee or the Securities
Administrator, as the case may be.
One-Year CMT Index: A rate per annum that is defined to be the
weekly average yield on United States
Treasury Securities adjusted to a constant
maturity of one year, as made available by
the Federal Reserve Board, published
in Federal Reserve Statistical Release H.15
(519) and most recently available as
of the date 45 days before the applicable
Rate Adjustment Date.
One-Year LIBOR Index: A rate per annum that is defined to be
the
average of interbank offered rates for
one-year U.S. dollar-denominated deposits
in the London market, as published in The
Wall Street Journal and most recently
available either (i) as of the first
Business Day in the month preceding the
month of the applicable Rate Adjustment
Date or (ii) up to the date 45 days
before the applicable Rate Adjustment
Date.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the
Trustee, or acceptable to the
Securities Administrator if such opinion is
delivered to the Securities
Administrator, who may be counsel for the
Depositor or either Master Servicer,
except that any opinion of counsel relating
to the qualification of the Trust
Estate as six REMICs or compliance with the
REMIC Provisions must be an opinion
of Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the
corresponding percentage described
below, as of the Closing Date:
Class B-1
2.50%
Class B-2
1.50%
Class B-3
0.95%
Class B-4
0.65%
Class B-5
0.45%
Class B-6
0.00%
Original Subordinate Certificate Balance: $15,011,237.00.
Originator: For each Mortgage Loan, the Person listed on the
Mortgage Loan Schedule as the
originator.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal
Prepayment in Full (with respect to a WF
Master Serviced Loan) or a Payoff (with
respect to a WMMSC Master Serviced Loan)
prior to such Due Date, which did not
become a Liquidated Mortgage Loan prior to
such Due Date and which was not purchased
from the Trust prior to such Due Date
pursuant to Sections 2.02, 2.04, 2.09 or
3.15(g).
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any
interest in such Certificate as the
Holder thereof and any other interest
therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth
or described in the Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Payoff: Any Mortgagor payment of principal on a WMMSC Master
Serviced Loan equal to the entire
outstanding Stated Principal Balance of such
WMMSC Master Serviced Loan, if received in
advance of the last scheduled Due
Date for such WMMSC Master Serviced Loan
and accompanied by an amount of
interest equal to accrued unpaid interest
on the WMMSC Master Serviced Loan to
the date of such payment-in-full.
Payoff
Earnings: For any Distribution Date with respect to each
WMMSC Master Serviced Loan on which a
Payoff was received by the WMMSC Master
Servicer during the Payoff Period, the
aggregate of the interest earned by the
WMMSC Master Servicer from investment of
each such Payoff from the date of
receipt of such Payoff until the Business
Day immediately preceding the related
Distribution Date (net of investment
losses).
Payoff Interest: For any Distribution Date with respect to a
WMMSC
Mortgage Loan for which a Payoff was
received on or after the first calendar day
of the month of such Distribution Date and
before the 15th calendar day of such
month, an amount of interest thereon at the
applicable Net Mortgage Interest
Rate from the first day of the month of
distribution through the day of receipt
thereof; to the extent (together with
Payoff Earnings and the aggregate WMMSC
Master Servicing Fee) not required to be
distributed as WMMSC Compensating
Interest on such Distribution Date, Payoff
Interest shall be payable to the
WMMSC Master Servicer as additional
servicing compensation.
Payoff Period: For the first Distribution Date, the period from
the
Cut-off Date through December 14, 2004,
inclusive; and for any Distribution Date
thereafter, the period from the 15th day of
the Prior Period through the 14th
day of the month of such Distribution Date,
inclusive.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance
of such Certificate by the Initial
Class Certificate Balance of the Class of
which such Certificate is a part.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate
for each Rate Adjustment Date specified
in the applicable Mortgage Note and
designated as such in the Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United
States, FHLMC, FNMA or any agency or instrumentality of the
United
States
when such obligations are backed by the full faith and credit
of
the United
States; provided that such obligations of FHLMC or FNMA shall
be limited
to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or
mortgage
participation securities with yields evidencing extreme sensitivity
to the
rate of
principal payments on the underlying mortgages, which shall not
constitute
Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing
not more than one month from the date of acquisition thereof
with
a
corporation incorporated under the laws of the United States or
any
state
thereof rated not lower than "P1" by Moody's and "A-1+" by
S&P;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits
and bankers' acceptances (which shall each have an original
maturity
of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365
days or a
remaining maturity of more than 30 days) denominated in United
States
dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state
thereof,
rated not
lower than "P1" by Moody's and "A-1+" by S&P;
(iv) commercial paper (having original maturities of not more
than
365 days)
of any corporation incorporated under the laws of the United
States or
any state thereof which is rated not lower than "P1" by Moody's
and "A-1+"
by S&P;
(v) investments in money market funds (including funds of the
Securities
Administrator or its affiliates, or funds for which an
affiliate
of the Securities Administrator acts as advisor, as well as
funds for
which the Securities Administrator and its affiliates may
receive compensation) rated
either "Aaa" by Moody's and "AAAm G" by S&P or
otherwise
approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating
Agency and, as evidenced by an Opinion of Counsel obtained by
the
related
Master Servicer or Securities Administrator, as the case may
be,
will not
affect the qualification of the Trust Estate as six REMICs;
provided, however, that no instrument shall
be a Permitted Investment if it
represents either (a) the right to receive
only interest payments with respect
to the underlying debt instrument or (b)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision
thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a foreign government,
international organization or any agency or
instrumentality of either of the
foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by
Section 511 of the Code on unrelated
business taxable income) (except certain
farmers' cooperatives described in Code
Section 521), (iv) rural electric and
telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with
respect to whom the income on a
Residual Certificate is allocable to a
foreign permanent establishment or fixed
base, within the meaning of an applicable
income tax treaty, of such Person or
any other U.S. Person, and (vi) any other
Person so designated by a Master
Servicer based on an Opinion of Counsel to
the effect that any transfer to such
Person may cause the Trust or any other
Holder of a Residual Certificate to
incur tax liability that would not be
imposed other than on account of such
transfer. The terms "United States,"
"State" and "international organization"
shall have the meanings set forth in Code
Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-LR, Class
B-4,
Class B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the sum of, for the Mortgage Loans
in such Loan Group, the following
amounts:
(A) with respect to the WF Master Serviced Loans in such Loan
Group,
the excess of (a) the sum of (i) the
aggregate of (A) the interest portion of
any Monthly Payment on a WF Master Serviced
Loan in such Loan Group and the
principal portion of any Monthly Payment on
a WF Master Serviced Loan in such
Loan Group due on the Due Date in the month
in which such Distribution Date
occurs and which is received prior to the
related Determination Date and (B) all
WF Servicer Periodic Advances made by a WF
Servicer (or the WF Master Servicer
or the Trustee, as applicable) in respect
of such Loan Group and payments of WF
Compensating Interest allocable to such
Loan Group made by the applicable
Servicer in respect of such Loan Group and
such Distribution Date deposited to
the WF Master Servicer Custodial Account
pursuant to Section 3.09(c)(vi); (ii)
all Liquidation Proceeds received on the WF
Master Serviced Loans in such Loan
Group during the preceding calendar month
and deposited to the WF Master
Servicer Custodial Account pursuant to
Section 3.09(c)(iii); (iii) all Principal
Prepayments received on the WF Master
Serviced Loans in such Loan Group during
the month preceding the month of such
Distribution Date and deposited to the WF
Master Servicer Custodial Account pursuant
to Section 3.09(c)(i) during such
period; (iv) in connection with any WF
Master Serviced Loans that are Defective
Mortgage Loans or Converted Mortgage Loans
in such Loan Group, the aggregate of
the Purchase Prices and Substitution
Adjustment Amounts remitted on the related
Remittance Date pursuant to Section
3.09(c)(vii); (v) any other amounts in the
WF Master Servicer Custodial Account
deposited therein pursuant to Section
3.09(c)(iv), (v) and (viii) in respect of
such Distribution Date and such Loan
Group; (vi) any WF Master Serviced Loan
Reimbursement Amount required to be
included pursuant to Section 5.02(a); and
(vii) any Recovery with respect to
such Distribution Date over (b) any amounts
permitted to be withdrawn from the
WF Master Servicer Custodial Account
pursuant to clauses (i) through (viii),
inclusive, of Section 3.11(b) in respect of
such Loan Group; and
(B) with respect to the WMMSC Master Serviced Loans, (1) the
total
amount of all cash received by or on behalf
of the WMMSC Master Servicer with
respect to such WMMSC Master Serviced Loans
by the Determination Date for such
Distribution Date and not previously
distributed, including Advances made by
WMMSC Servicers under any Servicing
Contract, Insurance Proceeds and Liquidation
Proceeds, except:
(a) all scheduled payments of principal and interest collected
but due subsequent to such Distribution Date;
(b) all Curtailments received after the Prior Period;
(c) all Payoffs received after the Payoff Period immediately
preceding such Distribution Date (together with any interest
payment
received with such Payoffs to the extent that it represents the
payment of interest accrued on the WMMSC Master Serviced Loans
for
the period subsequent to the Prior Period), and, without
duplication, interest which was accrued and received on Payoffs
received during the period from the 1st to the 14th day of the
month
of such Distribution Date, which interest shall not be included
in
the calculation of the Pool Distribution Amount for any
Distribution
Date;
(d) Insurance Proceeds and Liquidation Proceeds received on
the WMMSC Master Serviced Loans in such Loan Group after the
Prior
Period;
(e) all amounts in the WMMSC Master Servicer Custodial Account
or the Certificate Account which are due and reimbursable to a
WMMSC
Servicer or the WMMSC Master Servicer pursuant to the terms of
this
Agreement;
(f) the sum of the WMMSC Master Servicing Fee and the
Servicing Fee for each such WMMSC Master Serviced Loan in such
Loan
Group; and
(g) Excess Proceeds;
(2) the sum, to the extent not previously distributed, of the
following
amounts, to the extent advanced or received, as applicable, by
the WMMSC
Master Servicer:
(a) any Advance made by the WMMSC Master Servicer with respect
to such Distribution Date relating to such WMMSC Master
Serviced
Loans in such Loan Group; and
(b) any amounts payable as WMMSC Compensating Interest by
WMMSC on such Distribution Date allocable to WMMSC Master
Serviced
Loans in such Loan Group; and
(3) the total amount of any cash received during the Prior Period
by
the
Securities Administrator or the WMMSC Master Servicer in respect of
a
Purchase
Obligation under Section 2.02, 2.04 and 2.09 or any permitted
purchase
of a Mortgage Loan and any WMMSC Master Serviced Loan
Reimbursement Amounts to the extent specified in Section
5.02(a).
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group, the aggregate Stated Principal
Balance of all Mortgage Loans in such Loan
Group that were Outstanding Mortgage Loans
immediately following the Due Date in
the month preceding the month in which such
Distribution Date occurs.
Pooling REMIC: As defined in the Preliminary Statement, the
assets
of which consist of the Uncertificated
Group REMIC Regular Interests and such
amounts as shall from time to time be held
in the Pooling REMIC Sub-Account.
Pooling REMIC Distribution Amount: As defined in Section 5.02.
Pooling REMIC Sub-Account: The sub-account of the Certificate
Account designated by the Securities
Administrator pursuant to Section 3.09(h).
Prepaid Monthly Payment: With respect to each WMMSC Master
Serviced
Loan, any Monthly Payment received prior to
its scheduled Due Date, which is
intended to be applied to a Mortgage Loan
on its scheduled Due Date and held in
the related Servicer Custodial Account
until the Withdrawal Date following its
scheduled Due Date.
Prepayment Interest Shortfall: As to any Distribution Date and
(a)
each WF Master Serviced Loan subject to a
Principal Prepayment received during
the calendar month preceding such
Distribution Date, the amount, if any, by
which one month's interest at the related
Mortgage Interest Rate (net of the
Servicing Fee Rate) on such Principal
Prepayment exceeds the amount of interest
paid in connection with such Principal
Prepayment and (b) each WMMSC Master
Serviced Loan, the sum of the deficiency in
interest as a result of any Payoff
on a WMMSC Master Serviced Loan during the
portion of the related Prepayment
Period occurring in the calendar month
preceding the month of such Distribution
Date and the interest deficiency from any
Curtailment on a WMMSC Master Serviced
Loan during the related Prepayment
Period.
Prepayment Period: With respect to any Distribution Date and (i)
any
partial prepayments on the Mortgage Loans
is the calendar month preceding the
month of such Distribution Date, (ii) any
Principal Prepayments In Full on the
WF Master Serviced Loans is the calendar
month preceding the month of such
Distribution Date and (iii) any Payoffs on
the WMMSC Master Serviced Loans is
the period commencing on the 15th day of
the month preceding the month of such
Distribution Date (or on the Cut-off Date,
in the case of the initial
Distribution Date) and ending on the 14th
day of the month of such Distribution
Date.
Primary Mortgage Insurance Policy: Each policy of primary
mortgage
guaranty insurance or any replacement
policy therefor with respect to any
Mortgage Loan, in each case issued by an
insurer acceptable to FNMA or FHLMC.
Principal Amount: As to any Distribution Date and Loan Group,
the
sum of (a) the principal portion of each
Monthly Payment due on each Mortgage
Loan in such Loan Group on the related Due
Date, (b) the Stated Principal
Balance, as of the date of repurchase, of
(i) each WF Master Serviced Loan in
such Loan Group that was repurchased by a
WF Servicer pursuant to the applicable
Servicing Agreement or the Seller's
Warranties and Servicing Agreement, dated as
of November 1, 2004, by and between BANA
and Wells Fargo Bank, as the case may
be, as of such Distribution Date, (ii) each
WMMSC Master Serviced Loan that was
repurchased pursuant to a Purchase
Obligation during the Prior Period relating
to such Distribution Date, (iii) any
Mortgage Loan repurchased by the Seller
pursuant to the Mortgage Loan Purchase
Agreement or a Purchase Obligation as of
such Distribution Date or (iv) any Mortgage
Loan repurchased by the Depositor
pursuant to a Purchase Obligation, (c) any
Substitution Adjustment Amount in
connection with a Defective Mortgage Loan
in such Loan Group received with
respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans
in such Loan Group that are not yet
Liquidated Mortgage Loans received by a WF
Servicer or the WMMSC Master
Servicer, as applicable, during the Prior
Period relating to such Distribution
Date, (e) with respect to each Mortgage
Loan in such Loan Group that became a
Liquidated Mortgage Loan during the Prior
Period relating to such Distribution
Date, the amount of Liquidation Proceeds
(excluding Excess Proceeds) allocable
to principal received by a WF Servicer or
the WMMSC Master Servicer, as
applicable, with respect to such Mortgage
Loan during such Prior Period, (f) (i)
with respect to each WF Master Serviced
Loan, all Principal Prepayments on the
Mortgage Loans in such Loan Group received
by a WF Servicer during the Prior
Period and (ii) with respect to each WMMSC
Master Serviced Loan, all Payoffs
received on the WMMSC Master Serviced Loans
in such Loan Group during the Payoff
Period relating to such Distribution Date
and all Curtailments received on the
WMMSC Mortgage Loans in such Loan Group
during the Prior Period relating to such
Distribution Date and (g) any other
principal recoveries not described in (a)
through (f) of this definition, including
any Recoveries, received on the
Mortgage Loans in such Loan Group during
the Prior Period relating to such
Distribution Date.
Principal Prepayment: With respect to (a) each WF Master
Serviced
Loan, any payment or other recovery of
principal on a WF Master Serviced Loan
(other than Liquidation Proceeds) which is
received in advance of its scheduled
Due Date and is not accompanied by an
amount of interest representing scheduled
interest due on any date or dates in any
month or months subsequent to the month
of prepayment and (b) each WMMSC Master
Serviced Loan, any payment of principal
on a WMMSC Master Serviced Loan which
constitutes a Payoff or a Curtailment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a WF Master Serviced
Loan.
Prior Period: With respect to any Distribution Date, the
calendar
month immediately preceding the month of
such Distribution Date.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a
Restricted Class, the portion of the
Subordinate Principal Distribution Amounts
allocable to such Class, equal to the
product of the Subordinate Principal
Distribution Amounts for such Distribution
Date and a fraction, the numerator of which
is the related Class Certificate
Balance thereof and the denominator of
which is the aggregate Class Certificate
Balance of the Subordinate Certificates
that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be
0%. The Pro Rata Share of a Class of
Subordinate Certificates may be computed
for each of clause (i) and clause (ii)
of the definition of "Subordinate Principal
Distribution Amount" in the event
the Restricted Classes differ with respect
to each clause.
Purchase Obligation: An obligation of the Seller, the Depositor
or
the WMMSC Master Servicer to purchase
Mortgage Loans under the circumstances and
in the manner provided in Section 2.02,
2.04 or 2.09.
Purchase Price: With respect to each Mortgage Loan that was a
Defective Mortgage Loan repurchased on any
date pursuant to Sections 2.02 or
2.04 or a Converted Mortgage Loan
repurchased on any date pursuant to Section
2.09, an amount equal to (a) in the case of
a WMMSC Master Serviced Loan, the
sum of (i) the unpaid principal balance
thereof, (ii) the unpaid accrued
interest thereon at the applicable Mortgage
Interest Rate from the Due Date to
which interest was last paid by the
Mortgagor to the first day of the month
following the month in which such Mortgage
Loan became eligible to be
repurchased and (iii) any costs and damages
incurred by the Trust in connection
with any violation by such repurchased
Mortgage Loan of any predatory or abusive
lending law and (b) in the case of a WF
Master Serviced Loan, the sum of (i) the
Stated Principal Balance of the Mortgage
Loan, (ii) interest on such Stated
Principal Balance at the Mortgage Interest
Rate from the date on which interest
has last been paid and distributed through
the last day of the month in which
such repurchase takes place and (iii) any
costs and damages incurred by the
Trust in connection with any violation by
such repurchased WF Master Serviced
Loan of any predatory or abusive lending
law, less (x) amounts received or
advanced in respect of such repurchased WF
Master Serviced Loan which are being
held in the applicable Servicer Custodial
Account for distribution in the month
of repurchase and (y) if the Person
repurchasing such Mortgage Loan is servicing
such WF Master Serviced Loan under the
related Servicing Agreement, the
Servicing Fee for such Mortgage Loan.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which an adjustment to the Mortgage
Interest Rate of such Mortgage Loan becomes
effective under the related Mortgage
Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note and
indicated on the Mortgage Loan Schedule.
Rating Agency: Each of Moody's and S&P. If either such
organization
or a successor is no longer in existence,
"Rating Agency" shall be such
nationally recognized statistical rating
organization, or other comparable
Person, as is designated by the Depositor,
notice of which designation shall be
given to the Trustee, the Master Servicers
and the Securities Administrator.
References herein to a given rating or
rating category of a Rating Agency shall
mean such rating category without giving
effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation,
equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as
of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest
Rate from the Due Date as to which
interest was last paid or advanced (and not
reimbursed) to Certificateholders up
to the Due Date in the month in which
Liquidation Proceeds are required to be
distributed on the Stated Principal Balance
of such Liquidated Mortgage Loan
from time to time, minus (iii) the
Liquidation Proceeds, if any, received during
the month in which such liquidation
occurred, to the extent applied as
recoveries of interest at the Net Mortgage
Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to
each Mortgage Loan that has become the
subject of a Deficient Valuation, if the
principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and
the principal balance of the Mortgage Loan
as reduced by the Deficient
Valuation. With respect to each Mortgage
Loan that has become the subject of a
Debt Service Reduction and any Distribution
Date, the amount, if any, by which
the principal portion of the related
Monthly Payment has been reduced.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the
Cooperative and the originator of such
Cooperative Loan.
Record Date: The last day of the month (or, if such day is not
a
Business Day, the preceding Business Day)
preceding the month of the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such
Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: Either of the WF Master Serviced Loan
Reimbursement Amount or the WMMSC Master
Serviced Loan Reimbursement Amount.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group
2;
for Loan Group 3, Group 3; for Loan Group
4, Group 4; and for Loan Group 5,
Group 5.
Related Loan Group: For Group 1, Loan Group 1; for Group 2,
Loan
Group 2; for Group 3, Loan Group 3; for
Group 4, Loan Group 4; and for Group 5,
Loan Group 5.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act or
comparable state legislation, the amount,
if any, by which (i) interest collectible
on such Mortgage Loan for the most
recently ended calendar month is less than
(ii) interest accrued pursuant to the
terms of the Mortgage Note on the same
principal amount and for the same period
as the interest collectible on such
Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates as that term is
defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment
conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1
of the Code, and related provisions,
and regulations promulgated thereunder, as
the foregoing may be in effect from
time to time, as well as provisions of
applicable state laws.
Remittance Date: With respect to (a) each WF Servicer, shall
have
the meaning given to the term "Remittance
Date" in the applicable Servicing
Agreement and (b) each WMMSC Servicer or
the WMMSC Master Servicer and any
Distribution Date, anytime prior to 2:00
p.m. Eastern time on the Business Day
immediately preceding such Distribution
Date.
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a Servicer
or
the WMMSC Master Servicer, received in
respect of any REO Property (including,
without limitation, proceeds from the
rental of the related Mortgaged Property)
which are received prior to the final
liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by a Servicer
servicing
the related Mortgage Loan or the WMMSC
Master Servicer, as applicable, on behalf
of the Trust through foreclosure or
deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Representing Party: Solely with respect to the WMMSC Master
Serviced
Loans, Washington Mutual Mortgage
Securities Corp. or its successor in interest.
Request for Release: The Request for Release submitted by a
Servicer
or the WMMSC Master Servicer, as
applicable, to the Trustee or the Custodian on
behalf of the Trustee, as the case may be,
substantially in the form of Exhibit
E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be
maintained from time to time under this
Agreement in respect of such Mortgage
Loan.
Residual Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee or
the
Securities Administrator, any officer of
the Corporate Trust Department of the
Trustee or the Securities Administrator, as
applicable, including any Senior
Vice President, any Vice President, any
Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant
Trust Officer, or any other officer of
the Trustee or Securities Administrator, as
applicable, customarily performing
functions similar to those performed by any
of the above designated officers and
having responsibility for the
administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., or any successor thereto.
Securities Administrator: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor
securities administrator is appointed
hereunder, such successor, as securities
administrator.
Securities Administrator Fee: As to any Distribution Date and
Loan
Group, an amount equal to one-twelfth of
the Securities Administrator Fee Rate
multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans in
such Loan Group immediately following the
Due Date in the month preceding the
month in which such Distribution Date
occurs.
Securities Administrator Fee Rate: With respect to each
Mortgage
Loan, 0.0100% per annum.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security
interest in favor of the originator of
the Cooperative Loan in the related
Cooperative Stock.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest,
as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-R, Class
1-A-LR,
Class 2-A-1, Class 3-A-1, Class 4-A-1,
Class 5-A-1 and Class 5-A-2 Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the
Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and
Loan
Group, the percentage, carried to six
places rounded up, obtained by dividing
(i) the aggregate Class Certificate Balance
of the Senior Certificates of the
Related Group immediately prior to such
Distribution Date, by (ii) the Pool
Stated Principal Balance of such Loan Group
for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group during the seven years beginning on
the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Loan
Group and for any Distribution Date
occurring on or after the seventh
anniversary of the first Distribution Date
will, except as provided herein, be as
follows: for any Distribution Date in the
first year thereafter, the Senior
Percentage for such Loan Group plus 70% of the
Subordinate Percentage for such Loan Group
for such Distribution Date; for any
Distribution Date in the second year
thereafter, the Senior Percentage for such
Loan Group plus 60% of the Subordinate
Percentage for such Loan Group for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage for such Loan Group plus
40% of the Subordinate Percentage for
such Loan Group for such Distribution Date;
for any Distribution Date in the
fourth year thereafter, the Senior
Percentage for such Loan Group plus 20% of
the Subordinate Percentage for such Loan
Group for such Distribution Date; and
for any Distribution Date in the fifth or
later years thereafter, the Senior
Percentage for such Loan Group for such
Distribution Date unless (i) on any of
the foregoing Distribution Dates the
Aggregate Senior Percentage exceeds the
initial Aggregate Senior Percentage, in
which case the Senior Prepayment
Percentage for each Loan Group for such
Distribution Date will once again equal
100%, (ii) on any Distribution Date before
the Distribution Date occurring in
January 2008, the Aggregate Subordinate
Percentage for such Distribution Date is
greater than or equal to twice the initial
Aggregate Subordinate Percentage, in
which case the Senior Prepayment Percentage
for each Loan Group for such
Distribution Date will equal the Senior
Percentage for such Loan Group plus 50%
of the Subordinate Percentage for such Loan
Group, or (iii) on any Distribution
Date occurring on or after the Distribution
Date in January 2008, the Aggregate
Subordinate Percentage for such
Distribution Date is greater than or equal to
twice the initial Aggregate Subordinate
Percentage, in which case the Senior
Prepayment Percentage for each Loan Group
for such Distribution Date will equal
the Senior Percentage for such Loan Group.
Notwithstanding the foregoing, no
decrease in the share of the applicable
Subordinate Percentage (for calculating
the applicable Senior Prepayment Percentage
for any Loan Group) will occur and
the Senior Prepayment Percentage for all
Loan Groups will be calculated without
regard to clause (ii) or (iii) in the
preceding sentence unless both of the
Senior Step Down Conditions are
satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior
Percentage for such Loan Group of the
amounts described in clauses (a) through
(d) of the definition of "Principal
Amount" for such Distribution Date and Loan
Group and (ii) the Senior Prepayment
Percentage for such Loan Group of the
amounts described in clauses (e) through
(g) of the definition of "Principal Amount"
for such Distribution Date and Loan
Group.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment
Percentage for any Loan Group applies, (i)
the outstanding principal balance of all
Mortgage Loans (including, for this
purpose, any Mortgage Loans in foreclosure,
any REO Property and any Mortgage
Loan for which the Mortgagor has filed for
bankruptcy after the Closing Date)
delinquent 60 days or more (averaged over
the preceding six month period), as a
percentage of the aggregate Class
Certificate Balance of the Subordinate
Certificates, is not equal to or greater
than 50% or (ii) cumulative Realized
Losses with respect to the Mortgage Loans
as of the applicable Distribution Date
do not exceed the percentages of the
Original Subordinate Certificate Balance
set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2005 through December 2007
20%
January 2008 through December 2012
30%
January 2013 through December 2013
35%
January 2014 through December 2014
40%
January 2015 through December 2015
45%
January 2016 and thereafter
50%
Servicer: Any WF Servicer or WMMSC Servicer.
Servicing Agreements: Either of the BANA Servicing Agreement or
the
Wells Fargo Servicing Agreement.
Servicing Contract: A contract (including the WMMSC Servicing
Guide
to the extent incorporated by reference
therein) between the WMMSC Master
Servicer and a mortgage loan servicing
institution relating to the servicing of
some or all of the WMMSC Master Serviced
Loans for the benefit of the
Certificateholders; provided, however, that
such contract is consistent with the
servicing provisions of this Agreement.
Servicer Custodial Accounts: With respect to (a) each WF
Servicer,
the separate accounts created and
maintained by each of the WF Servicers
pursuant to the applicable Servicing
Agreement and (b) each WMMSC Servicer, the
custodial account for principal and
interest established and maintained by each
WMMSC Servicer and caused by the WMMSC
Master Servicer to be established and
maintained pursuant to Section 3.08(a) with
the corporate trust department of
the Securities Administrator or another
financial institution approved by the
WMMSC Master Servicer such that the rights
of the WMMSC Master Servicer, the
Trust, the Trustee, the Securities
Administrator and the Certificateholders
thereto shall be fully protected against
the claims of any creditors of the
applicable WMMSC Servicer and of any
creditors or depositors of the institution
in which such account is maintained, (ii)
within FDIC insured accounts (or other
accounts with comparable insurance coverage
acceptable to the Rating Agencies)
created, maintained and monitored by a
WMMSC Servicer or (iii) in a separate
non-trust account without FDIC or other
insurance in an Eligible Institution. In
the event that a Servicer Custodial Account
is established pursuant to clause
(ii) of the preceding sentence, amounts
held in such Servicer Custodial Account
shall not exceed the level of deposit
insurance coverage on such account;
accordingly, more than one Servicer
Custodial Account may be established. Any
amount that is at any time not protected or
insured in accordance with clause
(b) of the first sentence of this
definition of "Servicer Custodial Account"
shall promptly be withdrawn from such
Servicer Custodial Account and be remitted
to the WMMSC Master Servicer Custodial
Account.
Servicing Fee: With respect to (a) each WF Servicer, as defined
in
the applicable Servicing Agreement and (b)
each WMMSC Servicer for each WMMSC
Master Serviced Loan and Distribution Date,
the amount of the fee payable to the
WMMSC Servicer, which shall, for such
Distribution Date, be equal to one-twelfth
of the product of the WMMSC Servicing Fee
Rate with respect to such Mortgage
Loan and the Stated Principal Balance of
such Mortgage Loan. Such fee for a
WMMSC Servicer shall be payable monthly,
computed on the basis of the same
Stated Principal Balance and period
respecting which any related interest
payment on a Mortgage Loan is computed.
Each WMMSC Servicer's right to receive
the Servicing Fee is limited to, and
payable solely from, the interest portion
(including recoveries with respect to
interest from Liquidation Proceeds and
other proceeds, to the extent permitted by
Section 3.18) of related Monthly
Payments collected by a WMMSC Servicer, or
as otherwise provided under Section
3.18.
Servicing Fee Rate: Either of the WF Servicing Fee Rate or the
WMMSC
Servicing Fee Rate.
Servicing File: With respect to (a) each WF Master Serviced Loan,
as
defined in the applicable Servicing
Agreement and (b) each WMMSC Master Serviced
Loan, a file kept by the WMMSC Master
Servicer and/or a WMMSC Servicer in
connection with servicing of a WMMSC Master
Serviced Loan.
Servicing Officer: With respect to each WF Servicer, as defined
in
the related Servicing Agreement.
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage
Loan as of such date as specified in
the amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason of any
moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments
(with respect to a WF Master Serviced Loan)
or Curtailments (with respect to a
WMMSC Master Serviced Loan) and Liquidation
Proceeds allocable to principal
(other than with respect to any Liquidated
Mortgage Loan) and to the payment of
principal due on such Due Date and
irrespective of any delinquency in payment by
the related Mortgagor, and after giving
effect to any Deficient Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the
Class 1-LS Interest, Class 2-LS
Interest, Class 3-LS Interest, Class 4-LS
Interest and the Class 5-LS Interest,
equal to the ratio among the Group
Subordinate Amount of Loan Group 1, the Group
Subordinate Amount of Loan Group 2, the
Group Subordinate Amount for Loan Group
3, the Group Subordinate Amount for Loan
Group 4 and the Group Subordinate
Amount of Loan Group 5.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such
Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior
Prepayment Percentage for such Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount
equal to the sum of (i) the
Subordinate Percentage for such Loan Group
of the amounts described in clauses
(a) through (d) of the definition of
"Principal Amount" for such Distribution
Date and Loan Group and (ii) the
Subordinate Prepayment Percentage for such Loan
Group of the amounts described in clauses
(e) through (g) for such Distribution
Date and Loan Group.
Substitute
Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the
date of such substitution (i) have a
Stated Principal Balance, after deduction
of the principal portion of the
Monthly Payment due in the month of
substitution, not in excess of the Stated
Principal Balance of the Defective Mortgage
Loan; (ii) have a Net Mortgage
Interest Rate not less than, and not more
than 2% greater than that of the
Defective Mortgage Loan; (iii) be of the
same type as the Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not
higher than that of the Defective
Mortgage Loan; (v) have a Gross Margin not
less than that of the Defective
Mortgage Loan; (vi) have a credit grade not
lower in quality than that of the
Defective Mortgage Loan; (vii) have a
remaining term to maturity not greater
than (and not more than one year less than)
that of the Defective Mortgage Loan;
(viii) have the same lien priority as the
Defective Mortgage Loan; (ix) have the
same Index as the Defective Mortgage Loan;
and (x) (a) with respect to each
substitution for a WF Master Serviced Loan,
comply with each Mortgage Loan
representation and warranty set forth in
the Mortgage Loan Purchase Agreement,
the Servicing Agreements and the Seller's
Warranties and Servicing Agreement,
dated as of November 1, 2004, by and
between BANA and Wells Fargo Bank, and (b)
with respect to each substitution for a
WMMSC Master Serviced Loan, comply with
each Mortgage Loan representation and
warranty set forth in this Agreement
relating to the Defective Mortgage Loan.
More than one Substitute Mortgage Loan
may be substituted for a Defective Mortgage
Loan if such Substitute Mortgage
Loans meet the foregoing attributes in the
aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner
provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss.
301.6231(a)(7)-1.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S.
Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named
the
"Banc of America Funding 2004-D Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created
hereby and to be administered hereunder,
with respect to a portion of which six
REMIC elections are to be made, such
entire Trust Estate consisting of: (i) such
Mortgage Loans as from time to time
are subject to this Agreement, together
with the Mortgage Files relating
thereto, and together with all collections
thereon and proceeds thereof, (ii)
any REO Property, together with all
collections thereon and proceeds thereof,
(iii) the Trustee's rights with respect to
the Mortgage Loans under all
insurance policies required to be
maintained pursuant to this Agreement and any
proceeds thereof, (iv) the Depositor's
rights under the Servicing Agreements,
the Seller's Warranties and Servicing
Agreement, dated as of November 1, 2004,
by and between BANA and Wells Fargo Bank,
and the Mortgage Loan Purchase
Agreement (including any security interest
created thereby) and (v) the Servicer
Custodial Accounts, the Master Servicer
Custodial Accounts and the Certificate
Account and such assets that are deposited
therein from time to time and any
investments thereof, together with any and
all income, proceeds and payments
with respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor
trustee is appointed hereunder, such
successor, as trustee.
Uncertificated Group REMIC Interest: A regular interest in the
one
of the Group REMICs, which is held as an
asset of the Pooling REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Each of
the WF Group 4 Regular Interest, WF RCR
Regular Interest, WMMSC Group 1 Regular
Interest and WMMSC Group 4 Regular Interest
are Uncertificated Group REMIC
Interests.
Uncertificated Pooling REMIC Interest: A regular interest in
the
Pooling REMIC which is held as an asset of
the Upper-Tier REMIC and is entitled
to monthly distributions as provided in
Section 5.02(a) hereof. Any of the Class
1-L Interest, Class 1-LS Interest, Class
2-L Interest, Class 2-LS Interest,
Class 3-L Interest, Class 3-LS Interest,
Class 4-L Interest, Class 4-LS
Interest, Class 5-L Interest and Class 5-LS
Interest are Uncertificated Pooling
REMIC Interests.
Underwriting Guidelines: The published underwriting guidelines
of
the originator of any WMMSC Master Serviced
Loan in effect at the time such
WMMSC Master Serviced Loan was
originated.
Uninsured Cause: Any cause of damage to a Mortgaged Property,
the
cost of the complete restoration of which
is not fully reimbursable under the
hazard insurance policies required to be
maintained pursuant to Section 3.12.
Unscheduled Principal Amount: As to any Distribution Date and
Loan
Group, the sum of the amounts described in
clauses (e) through (g) of the
definition of "Principal Amount."
Upper-Tier Certificate: Any one of the Senior Certificates
(other
than the Class 1-A-LR Certificate) and the
Subordinate Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the
Securities Administrator pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Pooling REMIC Interests and such
amounts as shall from time to time be
deemed held in the Upper-Tier Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the
case of a partnership, Treasury
Regulations are adopted that provide
otherwise) created or organized in or under
the laws of the United States, any state
thereof or the District of Columbia,
including an entity treated as a
corporation or partnership for federal income
tax purposes, an estate whose income is
subject to United States federal income
tax regardless of its source, or a trust if
a court within the United States is
able to exercise primary supervision over
the administration of such trust, and
one or more such U.S. Persons have the
authority to control all substantial
decisions of such trust (or, to the extent
provided in applicable Treasury
Regulations, certain trusts in existence on
August 20, 1996 which are eligible
to elect to be treated as U.S.
Persons).
VA: The Department of Veterans Affairs, formerly known as the
Veterans Administration, or any successor
thereto.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. As of any date of
determination, (a) 1% of all Voting Rights
shall be allocated to the Holders of
the Residual Certificates and (b) the
remaining Voting Rights shall be allocated
among Holders of the remaining Classes of
Certificates in proportion to the
Certificate Balances of their respective
Certificates on such date.
Wells Fargo Bank: Wells Fargo Bank, N.A., in its capacity as
Servicer under the Wells Fargo Servicing
Agreement.
Wells Fargo Sale Agreements: The Seller's Warranties and
Servicing
Agreement, dated as of November 1, 2004, by
and between BANA and Wells Fargo
Bank, N.A. and the Seller's Warranties and
Servicing Agreement, dated as of
December 1, 2004, by and between BANA and
Wells Fargo Bank, N.A.
Wells Fargo Servicing Agreement: The Seller's Warranties and
Servicing Agreement, dated as of December
1, 2004, by and between BANA and Wells
Fargo Bank.
WF Compensating Interest: With respect to any Distribution Date
and
WF Servicer, an amount equal to the lesser
of (a) the aggregate Servicing Fee
payable to such WF Servicer for the WF
Master Serviced Loans serviced by such WF
Servicer as of the Due Date of the month
preceding the month of such
Distribution Date and (b) the aggregate of
the Prepayment Interest Shortfalls on
the WF Master Serviced Loans serviced by
such WF Servicer resulting from
Principal Prepayments on the WF Master
Serviced Loans during the related
Prepayment Period.
WF Escrow Account: As defined in Section 3.08(a).
WF Group 4 Call Right Mortgage Loans: The WF Master Serviced
Loans
in Loan Group 4.
WF Group 4 REMIC: As defined in the Preliminary Statement, the
assets of which consist of the WF Group 4
Call Right Mortgage Loans, such
amounts as shall be held in Sub-Account
WF-4, the Insurance Policies, if any,
relating to a WF Group 4 Call Right
Mortgage Loan and property which secured a
WF Group 4 Call Right Mortgage Loan and
which has been acquired by foreclosure
or deed in lieu of foreclosure.
WF Master Serviced Loan: Any Mortgage Loan that is master
serviced
by the WF Master Servicer, as indicated in
the Mortgage Loan Schedule.
WF Master Serviced Loan Reimbursement Amount: As defined in
Section
2.02.
WF Master Servicer: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor
master servicer is appointed
hereunder, such successor, as master
servicer.
WF Master Servicer Custodial Account: The account or accounts
created and maintained by the WF Master
Servicer pursuant to Section 3.09 which
must be an Eligible Account.
WF Master Servicer Custodial Account Reinvestment Income: For
each
Distribution Date, all income and gains net
of any losses realized since the
preceding Distribution Date from Permitted
Investments of funds in the WF Master
Servicer Custodial Account.
WF RCR REMIC: As defined in the Preliminary Statement, the assets
of
which consist of the Group 2, Group 3 and
Group 5 Mortgage Loans, such amounts
as shall be held in Sub-Account WF-RCR, the
insurance policies, if any, relating
to a Group 2, Group 3 or Group 5 Mortgage
Loan and property which secured a
Group 2, Group 3 or Group 5 Mortgage Loan
and which has been acquired by
foreclosure or deed in lieu of
foreclosure.
WF Remaining Call Right Mortgage Loans: The Group 2, Group 3
and
Group 5 Mortgage Loans.
WF Servicer: Either of BANA or Wells Fargo Bank, each in their
capacity as servicer of the WF Mortgage
Loans, or any successor servicer
appointed as herein provided.
WF Servicer Periodic Advance: With respect to each WF Servicer,
shall have the meaning given to term
"Monthly Advance" in the applicable
Servicing Agreement.
WF Servicer Servicing Advance: With respect to each WF
Servicer,
shall have the meaning given to the term
"Servicing Advances" in the applicable
Servicing Agreement.
WF Servicing Fee Rate: With respect to each WF Master Serviced
Loan,
as defined in the applicable Servicing
Agreement.
Withdrawal Date: Any day during the period commencing on the
18th
day of the month of the related
Distribution Date (or if such day is not a
Business Day, the immediately preceding
Business Day) and ending on the last
Business Day prior to the 21st day of the
month of such Distribution Date. The
"related Distribution Date" for any
Withdrawal Date is the Distribution Date
immediately following the related
Withdrawal Date.
WMMSC Advance: The payment required to be made by the WMMSC
Master
Servicer with respect to any Distribution
Date pursuant to Section 3.21 or, as
applicable, by a WMMSC Servicer pursuant to
a Servicing Contract.
WMMSC Compensating Interest: With respect to any Distribution
Date
and the WMMSC Master Servicer, an amount
equal to the least of (a) the sum of
(i) the aggregate WMMSC Master Servicing
Fee payable with respect to such
Distribution Date relating to the WMMSC
Master Serviced Loans, (ii) the
aggregate Payoff Earnings with respect to
such Distribution Date and (iii) the
aggregate Payoff Interest with respect to
such Distribution Date, (b) the
aggregate Prepayment Interest Shortfall
resulting from Payoffs on the WMMSC
Master Serviced Loans for such Distribution
Date and (c) one-twelfth of 0.125%
of the Stated Principal Balance of the
WMMSC Master Serviced Loans.
WMMSC Escrow Account: The WMMSC Escrow Account established and
maintained by each WMMSC Servicer and
caused by the WMMSC Master Servicer to be
established and maintained pursuant to
Section 3.08(b) with the corporate trust
department of the Securities Administrator
or another financial institution
approved by the WMMSC Master Servicer such
that the rights of the WMMSC Master
Servicer, the Trust, the Trustee, the
Securities Administrator and the
Certificateholders thereto shall be fully
protected against the claims of any
creditors of the applicable WMMSC Servicer
and of any creditors or depositors of
the institution in which such account is
maintained, (b) within FDIC insured
accounts (or other accounts with comparable
insurance coverage acceptable to the
Rating Agencies) created, maintained and
monitored by a WMMSC Servicer or (c) in
a separate non-trust account without FDIC
or other insurance in an Eligible
Institution. In the event that a WMMSC
Escrow Account is established pursuant to
clause (b) of the preceding sentence,
amounts held in such WMMSC Escrow Account
shall not exceed the level of deposit
insurance coverage on such account;
accordingly, more than one WMMSC Escrow
Account may be established. Any amount
that is at any time not protected or
insured in accordance with the first
sentence of this definition of "WMMSC
Escrow Account" shall promptly be
withdrawn from such WMMSC Escrow Account
and be remitted to the WMMSC Master
Servicer Custodial Account.
WMMSC Group 1 REMIC: As defined in the Preliminary Statement,
the
assets of which consist of the Group 1
Mortgage Loans, such amounts as shall be
held in Sub-Account WMMSC-1, the Insurance
Policies, if any, relating to a Group
1 Mortgage Loan and property which secured
a Group 1 Mortgage Loan and which has
been acquired by foreclosure or deed in
lieu of foreclosure.
WMMSC Group 4 Call Right Mortgage Loans: The WMMSC Master
Serviced
Loans in Loan Group 4.
WMMSC Group 4 REMIC: As defined in the Preliminary Statement,
the
assets of which consist of the WMMSC Group
4 Call Right Mortgage Loans, such
amounts as shall be held in Sub-Account
WMMSC-4, the Insurance Policies, if any,
relating to a WMMSC Group 4 Call Right
Mortgage Loan and property which secured
a WMMSC Group 4 Call Right Mortgage Loan
and which has been acquired by
foreclosure or deed in lieu of
foreclosure.
WMMSC Master Serviced Loan: Any Mortgage Loan that is master
serviced by the WMMSC Master Servicer, as
indicated in the Mortgage Loan
Schedule.
WMMSC Master Serviced Loan Reimbursement Amount: As defined in
Section 2.04.
WMMSC Master Servicer: Washington Mutual Mortgage Securities
Corp.,
and its successors-in-interest and, if a
successor master servicer is appointed
hereunder, such successor, as master
servicer.
WMMSC Master Servicer Custodial Account: The commingled account
(which shall be commingled only with
investment accounts related to a series of
pass-through certificates with a class of
certificates which has a rating equal
to the highest of ratings of the
Certificates) maintained by the WMMSC Master
Servicer in the trust department of the
Investment Depository pursuant to
Section 3.09 and which bears a designation
acceptable to the Rating Agencies.
WMMSC Master Servicer Custodial Account Reinvestment Income:
For
each Distribution Date, all income and
gains net of any losses realized since
the preceding Distribution Date from
Permitted Investments of funds in the WMMSC
Master Servicer Custodial Account.
WMMSC Master Servicing Fee: With respect to each WMMSC Master
Serviced Loan and Distribution Date, the
amount of the fee payable to the WMMSC
Master Servicer from the Certificate
Account, WMMSC Master Servicer Custodial
Account or Servicer Custodial Account,
which shall, for such Distribution Date,
be equal to one-twelfth of the product of
the WMMSC Master Servicing Fee Rate
with respect to such WMMSC Master Serviced
Loan and the Stated Principal Balance
of such WMMSC Mortgage Loan. Such fee shall
be payable monthly, computed on the
basis of the same Stated Principal Balance
and period respecting which any
related interest payment on a WMMSC Master
Serviced Loan is computed. The WMMSC
Master Servicer's right to receive the
WMMSC Master Servicing Fee is limited to,
and payable solely from, the interest
portion (including recoveries with respect
to interest from Liquidation Proceeds and
other proceeds, to the extent
permitted by Section 3.11) of related
Monthly Payments collected by the WMMSC
Master Servicer, or as otherwise provided
under Section 3.11.
WMMSC Master Servicing Fee Rate: With respect to each WMMSC
Master
Serviced Loan, 0.05% per annum.
WMMSC Servicer: Any mortgage loan servicing institution to which
the
WMMSC Master Servicer has delegated
servicing duties with respect to any WMMSC
Master Serviced Loan under a Servicing
Contract. With respect to any Mortgage
Loan for which the WMMSC Master Servicer
has not entered into a Servicing
Contract or as to which the related
Servicing Contract has terminated (other
than pursuant to Section 8.01), the WMMSC
Master Servicer shall be deemed to be
the Servicer of such WMMSC Master Serviced
Loan for all purposes of this
Agreement.
WMMSC Servicing Fee Rate: With respect to each WMMSC Master
Serviced
Loan, 0.375% per annum.
WMMSC Servicing Guide: The published Washington Mutual Servicer
Guide, as in effect from time to time.
Section 1.02 Interest Calculations. All calculations of
interest
will be made on a 360-day year consisting
of twelve 30-day months. All dollar
amounts calculated hereunder shall be
rounded to the nearest penny with one-half
of one penny being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and
delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to
the Trustee on behalf of the Trust
for the benefit of the Certificateholders,
without recourse, all the right,
title and interest of the Depositor in and
to the Mortgage Loans, including all
interest and principal received on or with
respect to the Mortgage Loans (other
than payments of principal and interest due
and payable on the Mortgage Loans on
or before the Cut-off Date), the
Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of
the Depositor as assignee of the
Seller with respect to the Seller's rights
under (i) the Seller's Warranties and
Servicing Agreement, dated as of November
1, 2004, by and between BANA and Wells
Fargo Bank and (ii) the Seller's Warranties
and Servicing Agreement, dated as of
December 1, 2004, by and between BANA and
Wells Fargo Bank, and the Depositor's
rights under the BANA Servicing Agreement.
The foregoing sale, transfer,
assignment and set over does not and is not
intended to result in a creation of
an assumption by the Trustee of any
obligation of the Depositor or any other
Person in connection with the Mortgage
Loans or any agreement or instrument
relating thereto, except as specifically
set forth herein. It is agreed and
understood by the parties hereto that it is
not intended that any mortgage loan
be included in the Trust that is a
"High-Cost Home Loan" as defined in any of
(i) the New Jersey Home Ownership Act
effective November 27, 2003, (ii) the New
Mexico Home Loan Protection Act effective
January 1, 2004 or (iii) the
Massachusetts Predatory Home Loan Practices
Act effective November 7, 2004.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to
the Trustee and a Custodian on behalf
of the Trustee, for the benefit of the
Certificateholders, the following
documents or instruments with respect to
each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wachovia Bank,
National
Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-D,
without
recourse,"
with all necessary intervening endorsements showing a complete
chain of
endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and
interest of
the party
so endorsing, as noteholder or assignee thereof, in and to that
Mortgage
Note) and, in the case of any Mortgage Loan originated in the
State of
New York documented by a NYCEMA, the NYCEMA, the new Mortgage
Note, if
applicable, the consolidated Mortgage Note and the consolidated
Mortgage;
(ii) except as provided below and other than with respect to
the
Mortgage
Loans purchased by the Seller under the Wells Fargo Sale
Agreements, the original recorded Mortgage with evidence of a
recording
thereon,
or if any such Mortgage has not been returned from the
applicable
recording
office or has been lost, or if such public recording office
retains
the original recorded Mortgage, a copy of such Mortgage
certified
by the
Depositor as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a
duly
executed
Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee
for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-D" (which may be included in
a
blanket
assignment or assignments), together with, except as provided
below and
other than with respect to the Mortgage Loans purchased by the
Seller
under the Wells Fargo Sale Agreements, originals of all interim
recorded
assignments of such mortgage or a copy of such interim
assignment
certified
by the Depositor as being a true and complete copy of the
original
recorded intervening assignments of Mortgage (each such
assignment, when duly and validly completed, to be in recordable
form and
sufficient
to effect the assignment of and transfer to the assignee
thereof,
under the Mortgage to which the assignment relates); provided
that, if
the related Mortgage has not been returned from the applicable
public
recording office, such Assignment of Mortgage may exclude the
information to be provided by the recording office; and provided,
further,
if the
related Mortgage has been recorded in the name of Mortgage
Electronic
Registration Systems, Inc. ("MERS") or its designee, no
Assignment
of Mortgage in favor of the Trustee will be required to be
prepared
or delivered and instead, the WMMSC Master Servicer shall, in
the
case of
the WMMSC Master Serviced Loans, or, in the case of the WF
Master
Serviced
Loans, the WF Master Servicer shall enforce the obligations of
the
applicable WF Servicer to, take all actions as are necessary to
cause
the Trust
to be shown as the owner of the related Mortgage Loan on the
records of
MERS for purposes of the system of recording transfers of
beneficial
ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by
the
Seller
under the Wells Fargo Sale Agreements, any of (A) the original
or
duplicate
original mortgagee title insurance policy and all riders
thereto;
(B) a title search showing no lien (other than standard
exceptions) on the Mortgaged Property senior to the lien of the
Mortgage
or (C) an
opinion of counsel of the type customarily rendered in the
applicable
jurisdiction in lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording
indicated thereon, or, if the lease is in the process of being
recorded,
a photocopy of the lease, certified by an officer of the
respective
prior owner of such Mortgage Loan or by the applicable title
insurance
company, closing/settlement/escrow agent or company or closing
attorney
to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage
or
equivalent
document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock (other
than
with
respect to any Mortgage Loan secured by Cooperative Stock
purchased
by the
Seller under the Wells Fargo Sale Agreements), the originals of
the
following
documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D)
The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed
UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing
Date, with respect to item (iii), if an
Assignment of Mortgage is required to be
recorded as set forth below, the
Depositor has delivered to the Trustee or
the Custodian on behalf of the
Trustee, as the case may be, a copy of such
Assignment of Mortgage in blank
rather than in the name of the Trustee and
has caused the applicable WF Servicer
(in the case of the WF Master Serviced
Loans) or the WMMSC Master Servicer (in
the case of the WMMSC Master Serviced
Loans) to retain the completed Assignment
of Mortgage for recording as described
below, unless such Mortgage has been
recorded in the name of MERS or its
designee. In addition, if the Depositor is
unable to deliver or cause the delivery of
any original Mortgage Note due to the
loss of such original Mortgage Note, the
Depositor may deliver a copy of such
Mortgage Note, together with a lost note
affidavit, and shall thereby be deemed
to have satisfied the document delivery
requirements of this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim
recorded assignments, (C) all
assumption, modification, consolidation or
extension agreements, if any, or (D)
the lender's title policy, if any (together
with all riders thereto), satisfying
the requirements of clause (ii), (iii),
(iv) or (v) above, respectively,
concurrently with the execution and
delivery hereof because such document or
documents have not been returned from the
applicable public recording office in
the case of clause (ii), (iii) or (iv)
above, or because the title policy, if
any, has not been delivered to any of the
related WF Servicer, the WMMSC Master
Servicer, the Seller or the Depositor, as
applicable, by the applicable title
insurer in the case of clause (v) above,
the Depositor shall promptly deliver or
cause to be delivered to the Trustee or the
Custodian on behalf of the Trustee,
as the case may be, in the case of clause
(ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such
assumption, modification,
consolidation or extension agreement, as
the case may be, with evidence of
recording indicated thereon upon receipt
thereof from the public recording
office, but in no event shall any such
delivery of any such documents or
instruments be made later than one year
following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv)
above, there has been a continuing delay
at the applicable recording office or, in
the case of clause (v), there has been
a continuing delay at the applicable
insurer and the Depositor has delivered the
Officer's Certificate to such effect to the
Trustee. The Depositor shall forward
or cause to be forwarded to the Trustee or
the Custodian, on behalf of the
Trustee, as the case may be, (1) from time
to time additional original documents
evidencing an assumption or modification of
a Mortgage Loan and (2) any other
documents required to be delivered by the
Depositor, the applicable WF Servicer
(in the case of the WF Master Serviced
Loans) or the WMMSC Master Servicer (in
the case of the WMMSC Master Serviced
Loans) to the Trustee or the Custodian on
the Trustee's behalf, as the case may be.
In the event that the original
Mortgage is not delivered and in connection
with the payment in full of the
related Mortgage Loan the public recording
office requires the presentation of a
"lost instruments affidavit and indemnity"
or any equivalent document, because
only a copy of the Mortgage can be
delivered with the instrument of satisfaction
or reconveyance, the Depositor (in the case
of the WF Master Serviced Loans) or
the WMMSC Master Servicer (in the case of
the WMMSC Master Serviced Loans) shall
prepare, execute and deliver or cause to be
prepared, executed and delivered, on
behalf of the Trust, such a document to the
public recording office.
Upon discovery by the Depositor or notice from the WF Servicer,
WF
Master Servicer or Securities Administrator
that a Document Transfer Event has
occurred, the Depositor shall, with respect
to Mortgage Loans purchased by the
Seller under the Wells Fargo Sale
Agreements, deliver or cause to be delivered
to the Trustee within 60 days copies (which
may be in electronic form mutually
agreed upon by the Depositor and the
Trustee) of the following additional
documents or instruments to the Mortgage
File with respect to each such Mortgage
Loan; provided, however, that originals of
such documents or instruments shall
be delivered to the Trustee if originals
are required under the law in which the
related Mortgaged Property is located in
order to exercise all remedies
available to the Trust under applicable law
following default by the related
Mortgagor:
(1) other than if the related Mortgage has been recorded in the
name
of MERS or its designee, originals of all
interim recorded assignments of such
mortgage or a copy of such interim
assignments certified by the Depositor as
being a true and complete copy of the
original recorded intervening assignments
of Mortgage (each such assignment, when
duly and validly completed, to be in
recordable form and sufficient to effect
the assignment of and transfer to the
assignee thereof, under the Mortgage to
which the assignment relates);
(2) the original or a certified copy of the lender's title
insurance
policy;
(3) the original Mortgage with evidence of recording thereon,
and
the original recorded power of attorney, if
the Mortgage was executed pursuant
to a power of attorney, with evidence of
recording thereon or, if such Mortgage
or power of attorney has been submitted for
recording but has not been returned
from the applicable public recording
office, has been lost or is not otherwise
available, a copy of such Mortgage or power
of attorney, as the case may be,
certified to be a true and complete copy of
the original submitted for
recording; and
(4) for each Mortgage Loan secured by Cooperative Stock, the
originals of the following documents or
instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
With respect to each WF Master Serviced Loan, as promptly as
practicable subsequent to such transfer and
assignment, the WF Master Servicer
shall (except for any Mortgage which has
been recorded in the name of MERS or
its designee) enforce the obligations of
the related WF Servicer pursuant to the
related Servicing Agreement to (I) cause
each Assignment of Mortgage to be in
proper form for recording in the
appropriate public office for real property
records within the time period required in
the applicable Servicing Agreement
and (II) at the Depositor's expense, cause
to be delivered for recording in the
appropriate public office for real property
records the Assignments of the
Mortgages to the Trustee, except that, with
respect to any Assignment of a
Mortgage as to which the related WF
Servicer has not received the information
required to prepare such assignment in
recordable form, such WF Servicer's
obligation to do so and to deliver the same
for such recording shall be as soon
as practicable after receipt of such
information and in accordance with the
applicable Servicing Agreement.
With respect to each WMMSC Master Serviced Loan, as promptly as
practicable subsequent to such transfer and
assignment and in any event, within
30 days thereafter, the WMMSC Master
Servicer shall (except for any Mortgage
which has been recorded in the name of MERS
or its designee), (I) cause each
Assignment of Mortgage to be in proper form
for recording in the appropriate
public office for real property records
within 30 days of the Closing Date and
(II) at the Depositor's expense, cause to
be delivered for recording in the
appropriate public office for real property
records the Assignments of the
Mortgages to the Trustee, except that, with
respect to any Assignment of a
Mortgage as to which the WMMSC Master
Servicer has not received the information
required to prepare such assignment in
recordable form, the WMMSC Master
Servicer's obligation to do so and to
deliver the same for such recording shall
be as soon as practicable after receipt of
such information and in any event
within 30 days after the receipt
thereof.
No recording of an Assignment of Mortgage will be required in a
state if either (i) the Depositor furnishes
to the Trustee and the Securities
Administrator an unqualified Opinion of
Counsel reasonably acceptable to the
Trustee and the Securities Administrator to
the effect that recordation of such
assignment is not necessary under
applicable state law to preserve the Trustee's
interest in the related Mortgage Loan
against the claim of any subsequent
transferee of such Mortgage Loan or any
successor to, or creditor of, the
Depositor or the originator of such
Mortgage Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not
required by either Rating Agency in
order to obtain the initial ratings on the
Certificates on the Closing Date. As
set forth on Exhibit L attached hereto is a
list of all states where recordation
is required by either Rating Agency to
obtain the initial ratings of the
Certificates. The Securities Administrator,
the Trustee and the Custodian may
rely and shall be protected in relying upon
the information contained in such
Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of
delivering the above documents to
the Trustee, or the Custodian on the
Trustee's behalf, will cause the applicable
WF Servicer to remit to the WF Master
Servicer for deposit in the WF Master
Servicer Custodial Account (with respect to
each WF Master Serviced Loan) or the
WMMSC Master Servicer to deposit in the
WMMSC Master Servicer Custodial Account
(with respect to each WMMSC Master Serviced
Loan) the portion of such payment
that is required to be deposited in the
such account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the
Mortgage
Loans. Subject to the provisions of the
following paragraph, the Trustee
declares that it, or the Custodian as its
agent, will hold the documents
referred to in Section 2.01 and the other
documents delivered to it or the
Custodian as its agent, as the case may be,
constituting the Mortgage Files, and
that it will hold such other assets as are
included in the Trust Estate
delivered to it, in trust for the exclusive
use and benefit of all present and
future Certificateholders. Upon execution
and delivery of this document, the
Trustee shall deliver and cause the
Custodian to deliver to the Depositor and
the Master Servicers a certification in the
form of Exhibit M hereto (the
"Initial Certification") to the effect
that, except as may be specified in a
list of exceptions attached thereto, each
such Person has received the original
Mortgage Note relating to each of the
Mortgage Loans for which such Person is
acting as custodian listed on the Mortgage
Loan Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, and cause the
Custodian, on behalf of the Trustee, to
review, the Mortgage Files in such Person's
possession, and shall deliver, no
later than 30 days after completion of such
review, to the Depositor and the
Master Servicers a certification in the
form of Exhibit N hereto (the "Final
Certification") to the effect that, as to
each Mortgage Loan for which it is
acting as custodian listed in the Mortgage
Loan Schedule, except as may be
specified in a list of exceptions attached
to such Final Certification, such
Mortgage File contains all of the items
required to be delivered pursuant to
Section 2.01(b). In performing any such
review, the Trustee and the Custodian
may conclusively rely on the purported
genuineness of any such document and any
signature thereon.
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a
Mortgage File which does not meet the
requirements of Section 2.01 or is omitted
from such Mortgage File, the Trustee
shall promptly notify or shall cause the
Custodian promptly to notify, as the
case may be (and in no event more than 30
days after completion of the review),
the Master Servicer and the Depositor of
such Mortgage Loan. The Depositor
hereby covenants and agrees that it will
promptly correct or cure such defect
within 90 days from the date it was so
notified of such defect and, if the
Depositor does not correct or cure such
defect within such period, the Depositor
will either (a) substitute for the related
Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be
accomplished in the manner and subject to the
conditions set forth below or (b) purchase
such Mortgage Loan from the Trust at
the Purchase Price for such Mortgage Loan;
provided, however, that in no event
shall such a substitution occur more than
two years from the Closing Date;
provided, further, that such substitution
or repurchase shall occur within 90
days of when such defect was discovered if
such defect will cause the Mortgage
Loan not to be a "qualified mortgage"
within the meaning of Section 860G(a)(3)
of the Code.
If during the period of such review by the Trustee of any WF
Master
Serviced Loan, the Depositor, the WF Master
Servicer, the Securities
Administrator or the Trustee discovers a
breach by a WF Servicer or the Seller
of any representation, warranty or covenant
under the Wells Fargo Sale
Agreements, the Servicing Agreements or the
Mortgage Loan Purchase Agreement in
respect of any WF Master Serviced Loan and
such breach materially adversely
affects the interest of the
Certificateholders in the related WF Master Serviced
Loan (provided that any such breach that
causes the WF Master Serviced Loan not
to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the
Code shall be deemed to materially and
adversely affect the interests of the
Certificateholders), then such party shall
promptly so notify the WF Master
Servicer, the Seller, such WF Servicer and
the Depositor of such breach and
request that the applicable WF Servicer or
the Seller, as the case may be, cure
such breach within 90 days of its discovery
or its receipt of notice of any such
breach. If the Seller or the applicable WF
Servicer, as applicable, does not
cure such breach in all material respects
during such period, the Trustee shall
enforce the applicable WF Servicer's or
Seller's obligation, as the case may be,
under the applicable Servicing Agreement,
the Wells Fargo Sale Agreements or the
Mortgage Loan Purchase Agreement, as
applicable, and cause the applicable WF
Servicer or Seller, as applicable, to
either (a) solely in the case of the
Seller, substitute for the related WF
Master Serviced Loan a Substitute Mortgage
Loan, which substitution shall be
accomplished in the manner and subject to the
conditions set forth below or (b) purchase
such WF Master Serviced Loan from the
Trust at the Purchase Price for such
Mortgage Loan; provided, however, that in
no event shall such a substitution occur
more than two years from the Closing
Date; provided, further, that such
substitution or repurchase must occur within
90 days of when such defect was discovered
if such defect will cause the
Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section
860G(a)(3) of the Code.
It is understood that the scope of the Trustee and the
Custodian's
review of the Mortgage Files is limited
solely to confirming that the documents
listed in Section 2.01 have been received
and further confirming that any and
all documents delivered pursuant to Section
2.01 appear on their face to have
been executed and relate to the applicable
Mortgage Loans identified in the
related Mortgage Loan Schedule based solely
upon the review of items (i) and
(xi) in the definition of Mortgage Loan
Schedule. Neither the Trustee nor the
Custodian shall have any responsibility for
determining whether any document is
valid and binding, whether the text of any
assignment or endorsement is in
proper or recordable form, whether any
document has been recorded in accordance
with the requirements of any applicable
jurisdiction, or whether a blanket
assignment is permitted in any applicable
jurisdiction.
In the event of a discovery of a breach of any representation
or
warranty of a related WF Servicer or the
Seller, the Trustee shall enforce the
rights of the Trust under the Wells Fargo
Sale Agreements, the Servicing
Agreements and the Mortgage Loan Purchase
Agreement for the benefit of the
Certificateholders. In the event of a
breach of the representations or
warranties with respect to the WF Master
Serviced Loans set forth in a Servicing
Agreement or a Wells Fargo Sale Agreement,
the Trustee shall enforce the right
of the Trust to be indemnified for such
breach of representation or warranty. In
addition, if a breach of a representation
with respect to a WF Master Serviced
Loan set forth in clauses (k) or (o) of
paragraph 3 or clauses (f) or (oo) of
paragraph 4 of the Mortgage Loan Purchase
Agreement occurs as a result of a
violation of an applicable predatory or
abusive lending law, the Trustee shall
enforce the right of the Trust to
reimbursement by the Seller for all costs or
damages incurred by the Trust as a result
of the violation of such law (such
amount, the "WF Master Serviced Loan
Reimbursement Amount"), but in the case of
a breach of a representation set forth in
clauses (k) or (o) of paragraph 3 of
the Mortgage Loan Purchase Agreement, only
to the extent the applicable WF
Servicer does not so reimburse the Trust.
It is understood and agreed that,
except for any indemnification provided in
the Servicing Agreements and the
Wells Fargo Sale Agreements and the payment
of any WF Master Serviced Loan
Reimbursement Amount, the obligation of a
WF Servicer or the Seller to cure or
to repurchase (or in the case of the
Seller, to substitute for) any WF Master
Serviced Loan as to which a document is
missing, a material defect in a
constituent document exists or as to which
such a breach has occurred and is
continuing shall constitute the sole remedy
against a WF Servicer or the Seller
in respect of such omission, defect or
breach available to the Trustee on behalf
of the Certificateholders.
With respect to the representations and warranties relating to
the
WF Master Serviced Loans set forth in the
Mortgage Loan Purchase Agreement that
are made to the best of the Seller's
knowledge or as to which the Seller had no
knowledge, if it is discovered by the
Depositor, the WF Master Servicer or the
Trustee that the substance of such
representation or warranty is inaccurate and
such inaccuracy materially and adversely
affects the interest of the
Certificateholders in the related WF Master
Serviced Loan then, notwithstanding
the Seller's lack of knowledge with respect
to the substance of such
representation or warranty being inaccurate
as the time the representation or
warranty was made, such inaccuracy shall be
deemed a breach of the applicable
representation or warranty.
It is understood and agreed that the representations and
warranties
relating to the WF Master Serviced Loans
set forth in the Mortgage Loan Purchase
Agreement shall survive delivery of the
Mortgage Files to the Trustee and shall
inure to the benefit of the
Certificateholders notwithstanding any restrictive
or qualified endorsement or assignment. It
is understood and agreed that the
obligations of the Seller set forth in this
Section 2.02 to cure, substitute for
or repurchase a WF Master Serviced Loan
pursuant to the Mortgage Loan Purchase
Agreement constitute the sole remedies
available to the Certificateholders and
to the Trustee on their behalf respecting a
breach of the representations and
warranties contained in the Mortgage Loan
Purchase Agreement.
The representations and warranties of each WF Servicer with
respect
to the applicable WF Master Serviced Loans
in the related Servicing Agreement or
the Wells Fargo Sale Agreements, which have
been assigned to the Trustee
hereunder, were made as of the date
specified in such Servicing Agreement or
Wells Fargo Sale Agreement, as the case may
be. To the extent that any fact,
condition or event with respect to a WF
Master Serviced Loan constitutes a
breach of both (i) a representation or
warranty of a WF Servicer under the
related Servicing Agreement or Wells Fargo
Sale Agreement and (ii) a
representation or warranty of the Seller
under the Mortgage Loan Purchase
Agreement, the only right or remedy of the
Trustee or of any Certificateholder
shall be the Trustee's right to enforce the
obligations of the applicable WF
Servicer under any applicable
representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no
obligation or liability with respect
to any breach of a representation or
warranty made by it with respect to the
Mortgage Loans if the fact, condition or
event constituting such breach also
constitutes a breach of a representation or
warranty made by the applicable WF
Servicer in the applicable Servicing
Agreement or Wells Fargo Sale Agreement,
without regard to whether such WF Servicer
fulfills its contractual obligations
in respect of such representation or
warranty. The Trustee further acknowledges
that the Depositor shall have no obligation
or liability with respect to any
breach of any representation or warranty
with respect to the WF Master Serviced
Loans (except as set forth in Section
2.04(b)) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee (or a Custodian on
behalf of the Trustee), for the
benefit of the Certificateholders, the
Mortgage Note, the Mortgage, the related
Assignment of Mortgage (except for any
Mortgage which has been recorded in the
name of MERS or its designee), and such
other documents and agreements as are
otherwise required by Section 2.01, with
the Mortgage Note endorsed and the
Mortgage assigned as required by Section
2.01. No substitution is permitted to
be made in any calendar month after the
Determination Date for such month.
Monthly Payments due with respect to any
such Substitute Mortgage Loan in the
month of substitution shall not be part of
the Trust Estate and will be retained
by the Depositor. For the month of
substitution, distributions to
Certificateholders will include the Monthly
Payment due for such month on any
Defective Mortgage Loan for which the
Depositor has substituted a Substitute
Mortgage Loan.
The related Master Servicer shall amend the Mortgage Loan
Schedule
for the benefit of the Certificateholders
to reflect the removal of each
Mortgage Loan that has become a Defective
Mortgage Loan and the substitution of
the Substitute Mortgage Loan or Loans and
the related Master Servicer shall
deliver the amended Mortgage Loan Schedule
to the Securities Administrator, the
Trustee and the Custodian. Upon such
substitution of a WF Master Serviced Loan
by the Seller, each Substitute Mortgage
Loan shall be subject to the terms of
this Agreement in all respects, and the
Seller shall be deemed to have made to
the Trustee with respect to such Substitute
Mortgage Loan, as of the date of
substitution, the representations and
warranties made pursuant to paragraph 4 of
the Mortgage Loan Purchase Agreement. Upon
such substitution of a WMMSC Master
Serviced Loan by the Representing Party,
each Substitute Mortgage Loan shall be
subject to the terms of this Agreement in
all respects, and the Representing
Party shall be deemed to have made to the
Trustee with respect to such
Substitute Mortgage Loan, as of the date of
substitution, the representations
and warranties made pursuant to Section
2.04(a) and (b) hereof. Upon any such
substitution and the deposit to applicable
Master Servicer Custodial Account of
any required Substitution Adjustment Amount
(as described in the next paragraph)
and receipt by the Trustee of a Request for
Release, the Trustee shall release,
or shall direct the Custodian to release,
the Mortgage File relating to such
Defective Mortgage Loan to the Seller or
the Representing Party, as applicable,
and shall execute and deliver at the
Seller's or the Representing Party's
direction such instruments of transfer or
assignment prepared by the Seller or
the Representing Party, as applicable, in
each case without recourse, as shall
be necessary to vest title in the Seller or
Representing Party, or its designee,
to the Trustee's interest in any Defective
Mortgage Loan substituted for
pursuant to this Section 2.02.
For any month in which the Seller or Representing Party
substitutes
one or more Substitute Mortgage Loans for
one or more Defective Mortgage Loans,
the amount (if any) by which the aggregate
principal balance of all such
Substitute Mortgage Loans substituted by
the Seller or Representing Party, as
the case may be, in a Loan Group as of the
date of substitution is less than the
aggregate Stated Principal Balance of all
such Defective Mortgage Loans in a
Loan Group substituted by the Seller or
Representing Party (after application of
the principal portion of the Monthly
Payments due in the month of substitution)
(the "Substitution Adjustment Amount" for
such Loan Group) plus an amount equal
to the aggregate of any unreimbursed
Advances with respect to such Defective
Mortgage Loans shall be remitted by the
Seller or the Representing Party to the
applicable Master Servicer for deposit to
the related Master Servicer Custodial
Account on or before the 18th of the month
succeeding the calendar month during
which the related Mortgage Loan is required
to be purchased or replaced
hereunder.
The Trustee shall retain or shall cause the Custodian to retain,
as
applicable, possession and custody of each
Mortgage File in accordance with and
subject to the terms and conditions set
forth herein. The related Master
Servicer shall cause to be promptly
delivered to the Trustee or the Custodian on
behalf of the Trustee, as the case may be,
upon the execution or, in the case of
documents requiring recording, receipt
thereof, the originals of such other
documents or instruments constituting the
Mortgage File as come into the related
Master Servicer's possession from time to
time.
The Trustee or the Custodian, on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect,
review or examine any such
documents, instruments, certificates or
other papers to determine that they are
genuine, enforceable, or appropriate for
the represented purpose or that they
are other than what they purport to be on
their face or (ii) to determine
whether any Mortgage File should include
any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii)
and (ix). In connection with making the
certifications required hereunder, to the
extent a title search or opinion of
counsel has been provided in lieu of a
title policy for any Mortgage Loan, the
Trustee shall only be responsible for
confirming that a title search or opinion
of counsel has been provided for such
Mortgage Loan.
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicers.
(a) The WF Master Servicer hereby makes the following
representations and warranties to the
Depositor, the WMMSC Master Servicer, the
Securities Administrator and the Trustee,
as of the Closing Date:
(i)
The WF Master Servicer is a national banking association duly
chartered
and validly existing in good standing under the laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted and is licensed, qualified and in good
standing
in each of the states where a Mortgaged Property securing a WF
Master
Serviced Loan is located if the laws of such state require
licensing
or qualification in order to conduct business of the type
conducted
by the WF Master Servicer. The WF Master Servicer has power and
authority
to execute and deliver this Agreement and to perform in
accordance
herewith; the execution, delivery and performance of this
Agreement
(including all instruments of transfer to be delivered pursuant
to this
Agreement) by the WF Master Servicer and the consummation of
the
transactions contemplated hereby have been duly and validly
authorized.
This
Agreement, assuming due authorization, execution and delivery by
the
other
parties hereto, evidences the valid, binding and enforceable
obligation
of the WF Master Servicer, subject to applicable law except as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation,
receivership, moratorium, reorganization or other similar laws
affecting
the
enforcement of the rights of creditors and (B) general principles
of
equity,
whether enforcement is sought in a proceeding in equity or at
law.
All
requisite corporate action has been taken by the WF Master Servicer
to
make this
Agreement valid and binding upon the WF Master Servicer in
accordance
with its terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the WF Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or
will,
prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the WF Master
Servicer
and will
not result in the breach of any term or provision of the
charter
or by-laws
of the WF Master Servicer or result in the breach of any term
or
provision of, or conflict with or constitute a default under or
result
in the
acceleration of any obligation under, any agreement, indenture
or
loan or
credit agreement or other instrument to which the WF Master
Servicer
or its property is subject, or result in the violation of any
law, rule,
regulation, order, judgment or decree to which the WF Master
Servicer
or its property is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the WF Master Servicer, threatened against
the WF
Master Servicer which, either individually or in the aggregate,
would
result in any material adverse change in the business,
operations,
financial
condition, properties or assets of the WF Master Servicer, or
in
any
material impairment of the right or ability of the WF Master
Servicer
to carry
on its business substantially as now conducted or which would
draw into
question the validity of this Agreement or the WF Master
Serviced
Loans or of any action taken or to be taken in connection with
the
obligations of the WF Master Servicer contemplated herein, or
which
would
materially impair the ability of the WF Master Servicer to
perform
under the
terms of this Agreement.
(b) The WMMSC Master Servicer hereby makes the following
representations and warranties to the
Depositor, the WF Master Servicer, the
Securities Administrator and the Trustee,
as of the Closing Date:
(i) The WMMSC Master Servicer is a corporation duly organized,
validly existing, and
in good standing under the laws of the state of
Delaware
and has all licenses necessary to carry on its business as now
being
conducted and is licensed, qualified and in good standing in each
of
the states
where a Mortgaged Property securing a WMMSC Master Serviced
Loan is
located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
the
WMMSC
Master Servicer. The WMMSC Master Servicer has power and
authority
to execute
and deliver this Agreement and to perform in accordance
herewith;
the execution, delivery and performance of this Agreement
(including
all instruments of transfer to be delivered pursuant to this
Agreement)
by the WMMSC Master Servicer and the consummation of the
transactions contemplated hereby have been duly and validly
authorized.
This
Agreement, assuming due authorization, execution and delivery by
the
other
parties hereto, evidences the valid, binding and enforceable
obligation
of the WMMSC Master Servicer, subject to applicable law except
as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other
similar
laws
affecting the enforcement of creditors' rights generally or
creditors
of
national banks and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All
requisite
corporate
action has been taken by the WMMSC Master Servicer to make this
Agreement
valid and binding upon the WMMSC Master Servicer in accordance
with its
terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the WMMSC Master Servicer is required or, if
required,
such consent, approval, authorization or order has been or
will,
prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the WMMSC Master
Servicer
and will not result in the breach of any term or provision of
the
certificate of incorporation or by-laws of the WMMSC Master
Servicer or
result in
the breach of any term or provision of, or conflict with or
constitute
a default under or result in the acceleration of any obligation
under, any
agreement, indenture or loan or credit agreement or other
instrument
to which the WMMSC Master Servicer or its property is subject,
or result
in the violation of any law, rule, regulation, order, judgment
or decree
to which the WMMSC Master Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the WMMSC Master Servicer, threatened against
the WMMSC
Master Servicer which, either individually or in the aggregate,
would
result in any material adverse change in the business,
operations,
financial
condition, properties or assets of the WMMSC Master Servicer,
or
in any
material impairment of the right or ability of the WMMSC Master
Servicer
to carry on its business substantially as now conducted or
which
would draw
into question the validity of this Agreement or the WMMSC
Master
Serviced Loans or of any action taken or to be taken in
connection
with the
obligations of the WMMSC Master Servicer contemplated herein,
or
which
would materially impair the ability of the WMMSC Master Servicer
to
perform
under the terms of this Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the
respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties as to the Mortgage
Loans.
(a) The Representing Party hereby represents and warrants to
the
Trustee with respect to the WMMSC Master
Serviced Loans or each WMMSC Master
Serviced Loan, as the case may be, as of
the date hereof or such other date set
forth herein that as of the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule
relating
to the
WMMSC Master Serviced Loans was true and correct in all
material
respects
at the date or dates respecting which such information is
furnished;
(ii) As of the Closing Date, each Mortgage relating to a WMMSC
Master
Serviced Loan that is not a Cooperative Loan is a valid and
enforceable (subject to Section 2.04(a)(xv)) first lien on an
unencumbered
estate in
fee simple or (if the related WMMSC Master Serviced Loan is
secured by
the interest of the Mortgagor as a lessee under a ground lease)
leasehold
estate in the related Mortgaged Property subject only to (a)
liens for
current real property taxes and special assessments; (b)
covenants,
conditions and restrictions, rights of way, easements and other
matters of
public record as of the date of recording such Mortgage, such
exceptions
appearing of record being acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal
obtained
in
connection with the origination of the WMMSC Master Serviced Loan;
(c)
exceptions
set forth in the title insurance policy relating to such
Mortgage,
such exceptions being acceptable to mortgage lending
institutions generally; and (d) other matters to which like
properties are
commonly
subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage;
(iii) As of the day prior to the Cut-off Date, all payments due
on
each WMMSC
Master Serviced Loan had been made and no more than 0.55% of
the WMMSC
Master Serviced Loans (by aggregate Stated Principal Balance as
of the
Cut-off Date) had been delinquent (i.e., was more than 30 days
past
due) more
than once in the preceding 12 months and any such delinquency
lasted for
no more than 30 days, no more than 0.26% of the WMMSC Master
Serviced
Loans (by aggregate Stated Principal Balance as of the Cut-off
Date) had
been delinquent more than twice in the preceding 12 months and
such
delinquencies lasted for no more than 30 days and no WMMSC
Master
Serviced
Loan had been delinquent more than three times in the preceding
12
months.
(iv) As of the Closing Date, there is no late assessment for
delinquent
taxes outstanding against any Mortgaged Property securing a
WMMSC
Master Serviced Loan;
(v) As of the Closing Date, there is no offset, defense or
counterclaim to any Mortgage Note relating to a WMMSC Master
Serviced
Loan,
including the obligation of the Mortgagor to pay the unpaid
principal
or interest on such Mortgage Note;
(vi) As of the Closing Date, each Mortgaged Property securing a
WMMSC
Master Serviced Loan is free of damage and in good repair,
ordinary
wear and
tear excepted;
(vii) Any and all requirements of any federal, state or local
law
including,
without limitation, usury, truth in lending, real estate
settlement
procedures, consumer credit protections, all applicable
predatory
and abusive lending laws, equal credit opportunity or
disclosure
laws
applicable to the origination and servicing of WMMSC Master
Serviced
Loan have
been complied with;
(viii) Each WMMSC Master Serviced Loan was originated by a
savings
and loan
association, savings bank, commercial bank, credit union,
insurance
company, or similar institution which is supervised and
examined
by a
federal or state authority or by a mortgagee approved by the FHA
and
will be
serviced by an institution which meets the servicer eligibility
requirements established by WMMSC;
(ix) As of the Closing Date, each WMMSC Master Serviced Loan that
is
not a
Cooperative Loan is covered by an ALTA form or CLTA form of
mortgagee
title insurance policy or other form of policy of insurance
which has
been issued by, and is the valid and binding obligation of, a
title
insurer which, as of the origination date of such WMMSC Master
Serviced
Loan, was qualified to do business in the state in which the
related
Mortgaged Property securing the WMMSC Master Serviced Loan is
located.
Such policy insures the originator of the WMMSC Master Serviced
Loan, its
successors and assigns as to the first priority lien of the
Mortgage
in the original principal amount of the WMMSC Master Serviced
Loan
subject to the exceptions set forth in such policy. Such policy is
in
full force
and effect and inures to the benefit of the Trust upon the
consummation of the transactions contemplated by this Agreement and
no
claims
have been made under such policy, and no prior holder of the
related
Mortgage has done, by act or omission, anything which would
impair
the
coverage of such policy;
(x) Each WMMSC Master Serviced Loan with a Loan-to-Value Ratio as
of
the
Cut-off Date in excess of 80% was covered by a Primary Mortgage
Insurance
Policy or an FHA insurance policy or a VA guaranty, and such
policy or
guaranty is valid and remains in full force and effect;
(xi) As of the Closing Date, all policies of insurance required
by
this
Agreement or by a Servicing Contract have been validly issued
and
remain in
full force and effect, including such policies covering the
Depositor,
the WMMSC Master Servicer or any WMMSC Servicer;
(xii) As of the Closing Date, each insurer issuing a Primary
Mortgage
Insurance Policy holds a rating acceptable to the Rating
Agencies;
(xiii) Each Mortgage (exclusive of any riders thereto) relating to
a
WMMSC
Master Serviced Loan was documented by appropriate FNMA/FHLMC
mortgage
instruments in effect at the time of origination;
(xiv) As of the Closing Date, the Mortgaged Property securing
each
Mortgage
relating to a WMMSC Master Serviced Loan that is not a
Cooperative Loan is improved with a one- to four-family dwelling
unit,
including
units in a duplex, triplex, fourplex, condominium project,
townhouse,
a planned unit development or a de minimis planned unit
development;
(xv) As of the Closing Date, each Mortgage and Mortgage Note
relating
to a WMMSC Master Serviced Loan is the legal, valid and binding
obligation
of the maker thereof and is enforceable in accordance with its
terms,
except only as such enforcement may be limited by laws
affecting
the
enforcement of creditors' rights generally and principles of
equity;
(xvi) As of the date of origination, as to Mortgaged Properties
securing
WMMSC Master Serviced Loan which are units in condominiums or
planned
unit developments, all of such units met the applicable
Underwriting Guidelines, were located in a condominium or planned
unit
development project which received FNMA or FHLMC approval, or
are
approvable
by FNMA or FHLMC or otherwise was approved by the Depositor;
(xvii) None of the WMMSC Master Serviced Loans are "buydown"
loans;
(xviii) None of the WMMSC Master Serviced Loans are covered by a
FHA
insurance
policy or VA insurance policy;
(xix) Based solely on representations of the Mortgagors obtained
at
the
origination of the related WMMSC Master Serviced Loans,
approximately
99.28% (by
aggregate Stated Principal Balance as of the Cut-off Date) of
the WMMSC
Master Serviced Loans in Loan Group 1 will be secured by owner
occupied
Mortgaged Properties which are the primary residences of the
related
Mortgagors, approximately 0.72% (by aggregate Stated Principal
Balance as
of the Cut-off Date) of the WMMSC Master Serviced Loans in Loan
Group 1
will be secured by owner occupied Mortgaged Properties which
were
second or
vacation homes of the Mortgagors and none of the WMMSC Master
Serviced
Loans in Loan Group 1 will be secured by Mortgaged Properties
which were
investor properties of the related Mortgagors; all of the WMMSC
Master
Serviced Loans in Loan Group 4 will be secured by owner
occupied
Mortgaged
Properties which are the primary residences of the related
Mortgagors, none of the WMMSC Master Serviced Loans in Loan Group 4
will
be secured
by owner occupied Mortgaged Properties which were second or
vacation
homes of the Mortgagors and none of the WMMSC Master Serviced
Loans in
Loan Group 4 will be secured by Mortgaged Properties which were
investor
properties of the related Mortgagors;
(xx) Prior to origination or refinancing, an appraisal of each
Mortgaged
Property securing a WMMSC Master Serviced Loan was made by an
appraiser
on a form satisfactory to FNMA or FHLMC;
(xxi) The WMMSC Master Serviced Loans have been underwritten
substantially in accordance with the applicable Underwriting
Guidelines;
(xxii) If the WMMSC Master Serviced Loan is secured by a
long-term
residential lease, (1) the lessor under the lease holds a fee
simple
interest
in the land; (2) the terms of such lease expressly permit the
mortgaging
of the leasehold estate, the assignment of the lease without
the
lessor's consent and the acquisition by the holder of the Mortgage
of
the rights
of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the
holder of the Mortgage with substantially
similar
protections; (3) the terms of such lease do not (a) allow the
termination thereof upon the lessee's default without the holder of
the
Mortgage
being entitled to receive written notice of, and opportunity to
cure, such
default, (b) allow the termination of the lease in the event of
damage or
destruction as long as the Mortgage is in existence, (c)
prohibit
the holder of the Mortgage from being insured (or receiving
proceeds
of insurance) under the hazard insurance policy or policies
relating
to the Mortgaged Property or (d) permit any increase in the
rent
other than
pre-established increases set forth in the lease; (4) the
original term of such lease in not
less than 15 years; (5) the term of
such lease
does not terminate earlier than five years after the maturity
date of
the Mortgage Note; and (6) the Mortgaged Property is located in
a
jurisdiction in which the use of leasehold estates in
transferring
ownership
in residential properties is a widely accepted practice;
(xxiii) All of the WMMSC Master Serviced Loans have due-on-sale
clauses;
however, the due on sale provisions may not be exercised at the
time of a
transfer if prohibited by law;
(xxiv) With respect to each WMMSC Master Serviced Loan that is
a
Cooperative Loan, the Cooperative Stock that is pledged as security
for
the
Cooperative Loan is held by a person as a tenant-stockholder
(as
defined in
Section 216 of the Code) in a cooperative housing corporation
(as
defined in Section 216 of the Code);
(xxv) Each WMMSC Master Serviced Loan that is a Cooperative Loan
is
secured by
a valid, subsisting and enforceable (except as such enforcement
may be
limited by laws affecting the enforcement of creditors' rights
generally
and principles of equity) perfected first lien and security
interest
in the related Cooperative Stock securing the related Mortgage
Note,
subject only to (a) liens of the Cooperative for unpaid
assessments
representing the Mortgagor's pro rata share of the Cooperative's
payments
for its
blanket mortgage, current and future real property taxes,
insurance
premiums, maintenance fees and other assessments to which like
collateral
is commonly subject, and (b) other matters to which like
collateral
is commonly subject which do not materially interfere with the
benefits
of the security intended to be provided by the Security
Agreement;
(xxvi) With respect to any WMMSC Master Serviced Loan as to which
an
affidavit
has been delivered to the Trustee or related Custodian
certifying
that the original Mortgage Note is lost or destroyed, if such
WMMSC
Master Serviced Loan is subsequently in default, the enforcement
of
such WMMSC
Master Serviced Loan or of the related Mortgage by or on behalf
of the
Trust will not be materially adversely affected by the absence
of
the
original Mortgage Note (or portion thereof, as applicable);
(xxvii) Based upon an appraisal of the Mortgaged Property
securing
each WMMSC
Master Serviced Loan, as of the Cut-off Date approximately
99.54% (by
aggregate Stated Principal Balance as of the Cut-off Date) of
the WMMSC
Master Serviced Loans in Loan Group 1 had a Loan-to-Value Ratio
less than
or equal to 80%, approximately 0.46% (by aggregate Stated
Principal Balance as
of the Cut-off Date) of the WMMSC Master Serviced
Loans in
Group 1 had a Loan-to-Value Ratio greater than 80% but less
than
or equal
to 95%, none of the WMMSC Master Serviced Loans in Loan Group 1
had a
Loan-to-Value Ratio greater than 95% and all of the WMMSC
Master
Serviced
Loans in Loan Group 4 had a Loan-to-Value Ratio less than or
equal to
80%;
(xxviii) Approximately 76.71% (by aggregate Stated Principal
Balance
as of the
Cut-off Date) of the WMMSC Master Serviced Loans in Loan Group
1
and
approximately 86.74% (by aggregate Stated Principal Balance as of
the
Cut-off
Date) of the WMMSC Master Serviced Loans in Loan Group 4 were
originated
for the purpose of refinancing existing mortgage debt,
including
cash-out refinancings; and approximately 23.29% (by aggregate
Stated
Principal Balance as of the Cut-off Date) of the WMMSC Master
Serviced
Loans in Loan Group 1 and approximately 13.26% (by aggregate
Stated
Principal Balance as of the Cut-off Date) of the WMMSC Master
Serviced
Loans in Loan Group 4 were originated for the purpose of
purchasing
the Mortgaged Property;
(xxix) Not less than approximately 74.74% and approximately
71.88%
(each by
aggregate Stated Principal Balance as of the Cut-off Date) of
the
WMMSC
Master Serviced Loans in Loan Group 1 and WMMSC Master Serviced
Loans in
Loan Group 4, respectively, were originated under full
documentation programs;
(xxx) No WMMSC Master Serviced Loan is a "high cost" loan as
defined
under any
federal, state or local law applicable to such Mortgage at the
time of
its origination;
(xxxi) Each WMMSC Master Serviced Loan constitutes a qualified
mortgage
under Section 860G(a)(3)(A) of the Code and Treasury
Regulations
Section
1.860G-2(a)(1);
(xxxii) The Mortgage Note and the Mortgage relating to each
WMMSC
Master
Serviced Loan are genuine, and each is the legal, valid and
binding
obligation
of the maker thereof and each party assuming liability
therefor,
enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization,
moratorium, or other similar laws affecting the enforcement of
creditors'
rights
generally and except that the equitable remedy of specific
performance and other equitable remedies are subject to the
discretion of
the
courts;
(xxxiii) With respect to each WMMSC Master Serviced Loan, there
are
no
mechanics' or similar liens or claims which have been filed for
work,
labor, or
material (and no rights are outstanding that under law could
give rise
to such lien) which are, or may be, liens prior or equal to the
lien of
the related Mortgage, which are not insured against by the
related
mortgagee's policy of title insurance; and
(xxxiv) No WMMSC Master Serviced Loan is a High Cost Loan or
Covered
Loan (as
such terms are defined in the Standard & Poor's LEVELS(R)
Glossary
in effect on the Closing Date, which is now Version 5.6
Revised,
Appendix
E, applicable portions of which are attached hereto as Exhibit
T
hereto),
except that the definition of a High Cost Loan for the purposes
hereof
shall not include loans originated in Los Angeles or Oakland,
California, and no WMMSC Master Serviced Loan originated on or
after
October 1,
2002 through March 6, 2003 is governed by the Georgia Fair
Lending
Act.
Notwithstanding the foregoing, no representations or warranties
are
made by the Representing Party as to the
environmental condition of any
Mortgaged Property securing a WMMSC Master
Serviced Loan; the absence, presence
or effect of hazardous wastes or hazardous
substances on any Mortgaged Property
securing a WMMSC Master Serviced Loan; any
casualty resulting from the presence
or effect of hazardous wastes or hazardous
substances on, near or emanating from
any Mortgaged Property securing a WMMSC
Master Serviced Loan; the impact on
Certificateholders of any environmental
condition or presence of any hazardous
substance on or near any Mortgaged Property
securing a WMMSC Master Serviced
Loan; or the compliance of any Mortgaged
Property securing a WMMSC Master
Serviced Loan with any environmental laws,
nor is any agent, Person or entity
otherwise affiliated with the Representing
Party authorized or able to make any
such representation, warranty or assumption
of liability relative to any
Mortgaged Property securing a WMMSC Master
Serviced Loan. In addition, no
representations or warranties are made by
the Representing Party with respect to
the absence or effect of fraud in the
origination of any WMMSC Master Serviced
Loan.
(b) The Depositor hereby represents and warrants to the Trustee
with
respect to the Mortgage Loans or each
Mortgage Loan, as the case may be, as of
the date hereof or such other date set
forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment
contemplated
herein,
the Depositor was the sole owner and holder of the Mortgage
Loans.
The
Mortgage Loans were not assigned or pledged by the Depositor and
the
Depositor
had good and marketable title thereto, and the Depositor had
full right
to transfer and sell the Mortgage Loans to the Trustee free and
clear of
any encumbrance, participation interest, lien, equity, pledge,
claim or
security interest and had full right and authority subject to
no
interest
or participation in, or agreement with any other party to sell
or
otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right,
title and interest in the Mortgage Loans to the Trustee on
behalf
of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred
the
Mortgage
Loans to the Trustee on behalf of the Trust with any intent to
hinder,
delay or defraud an of its creditors.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall
survive delivery of the respective Mortgage
Files to the Trustee or the related
Custodian and shall inure to the benefit of
the Trustee, notwithstanding any
restrictive or qualified endorsement or
assignment.
Upon discovery by any of the Depositor, the Representing Party,
either Master Servicer, the Trustee or the
Custodian that any of the
representations and warranties set forth in
this Section 2.04 is not accurate
(referred to herein as a "breach") and that
such breach materially and adversely
affects the interests of the
Certificateholders in the related Mortgage Loan,
the party discovering such breach shall
give prompt written notice to the other
parties (the Custodian being so obligated
under the Custodial Agreement);
provided that any such breach that causes
the Mortgage Loan not to be a
"qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code shall
be deemed to materially and adversely
affect the interests of the
Certificateholders. Within 90 days of its
discovery or its receipt of notice of
any such breach, the Representing Party, if
such breach relates to a
representation and warranty set forth in
Section 2.04(a), or the Depositor, if
such breach relates to a representation and
warranty set forth in Section
2.04(b), shall cure such breach in all
material respects or shall either (i)
repurchase the Mortgage Loan or any
property acquired in respect thereof from
the Trustee at a price equal to the
Purchase Price or (ii) if within two years
of the Closing Date, substitute for such
Mortgage Loan in the manner described
in Section 2.02; provided that if the
breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code,
any such repurchase or substitution must
occur within 90 days from the date the
breach was discovered. In addition to the
foregoing, if a breach of the
representation set forth in clause (vii) or
clause (xxxiv) of Section 2.04(a)
occurs as a result of a violation of an
applicable predatory or abusive lending
law, the Representing Party shall reimburse
the Trust for all costs or damages
incurred by the Trust as a result of the
violation of such law (such amount, the
"WMMSC Master Serviced Loan Reimbursement
Amount"). The Purchase Price of any
repurchase described in this paragraph, the
Substitution Adjustment Amount, if
any, and any WMMSC Master Serviced Loan
Reimbursement Amount shall be remitted
to the applicable Master Servicer for
deposit to the related Master Servicer
Custodial Account. It is understood and
agreed that, except with respect to the
second preceding sentence, the obligation
of the Representing Party or the
Depositor, as applicable, to repurchase or
substitute for any Mortgage Loan or
Mortgaged Property as to which such a
breach has occurred and is continuing
shall constitute the sole remedy respecting
such breach available to
Certificateholders, or to the Trustee on
behalf of Certificateholders, and such
obligation shall survive until termination
of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Senior
Certificates (other than the Class 1-A-R
and Class 1-A-LR Certificates) and the
Classes of Class B Certificates as
"regular interests" and the Class 1-A-R
Certificate as the single class of
"residual interest" in the Upper Tier REMIC
for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively.
The Depositor hereby further designates
the Class 1-L Interest, Class 1-LS
Interest, Class 2-L Interest, Class 2-LS
Interest, Class 3-L Interest, Class 3-LS
Interest, Class 4-L Interest, Class
4-LS Interest, Class 5-L Interest and Class
5-LS Interest as classes of "regular
interests" and the Class 1-LR-E Interest as
the single class of "residual
interest" in the Pooling REMIC for the
purposes of Code Sections 860G(a)(1) and
860G(a)(2), respectively. The Depositor
hereby further designates (i) the WF
Group 4 Regular Interest as the class of
"regular interests" and the Class
1-LR-A Interest as the single class of
"residual interest" in the WF Group 4
REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively;
(ii) the WF RCR Regular Interest as the
class of "regular interests" and the
Class 1-LR-B Interest as the single class
of "residual interest" in the WF RCR
REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively;
(iii) the WMMSC Group 1 Regular Interest as
the class of "regular interests" and
the Class 1-LR-C Interest as the single
class of "residual interest" in the
WMMSC Group 1 REMIC for the purposes of
Code Sections 860G(a)(1) and 860G(a)(2),
respectively; and (iv) the WMMSC Group 4
Regular Interest as the class of
"regular interests" and the Class 1-LR-D
Interest as the single class of
"residual interest" in the WMMSC Group 4
REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each
REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest
possible maturity date" of the regular
interests in each REMIC is January 25,
2035.
Section 2.08 Execution and Delivery of Certificates. The
Securities
Administrator (i) acknowledges the issuance
of and hereby declares that it holds
the Uncertificated Group REMIC Regular
Interests on behalf of the Pooling REMIC
and the Certificateholders and that it
holds the Uncertificated Pooling REMIC
Regular Interests on behalf of the
Upper-Tier REMIC and the Certificateholders
and (ii) has executed and delivered to or
upon the order of the Depositor, in
exchange for the Mortgage Loans, the
Uncertificated Group REMIC Regular
Interests and the Uncertificated Pooling
REMIC Interests, together with all
other assets included in the definition of
"Trust Estate," receipt of which is
hereby acknowledged, Certificates in
authorized denominations which, together
with the Uncertificated Group REMIC Regular
Interests and the Uncertificated
Pooling REMIC Interests, evidence ownership
of the entire Trust Estate.
Section 2.09 Repurchase of Converted Mortgage Loans. The
Depositor
shall repurchase from the Trust any
Converted Mortgage Loan prior to the first
Due Date for such Mortgage Loan following
the Conversion Date. Any such
repurchase shall be at the Purchase Price.
The Purchase Price for any
repurchased Converted Mortgage Loan shall
be delivered to the related Master
Servicer for deposit to the applicable
Master Servicer Custodial Account and,
upon receipt by the Trustee or the
Custodian on behalf of the Trustee, as the
case may be, of written notification of any
such deposit signed by an officer of
the Depositor and a Request for Release,
the Trustee or Custodian, as
applicable, shall release to the Depositor
the related Mortgage File and shall
execute and deliver such instruments of
transfer or assignment prepared by the
Depositor, in each case without recourse,
as shall be necessary to vest in the
Depositor legal and beneficial ownership of
such Converted Mortgage Loan.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.
(a) For and on behalf of the Certificateholders, the WF Master
Servicer shall supervise, monitor and
oversee the obligations of the WF
Servicers to service and administer their
respective WF Master Serviced Loans in
accordance with the terms of the applicable
Servicing Agreement and shall have
full power and authority to do any and all
things which it may deem necessary or
desirable in connection with such master
servicing and administration. In
performing its obligations hereunder, the
WF Master Servicer shall act in a
manner consistent with this Agreement,
subject to the prior sentence, and with
Customary Servicing Procedures.
Furthermore, the WF Master Servicer shall
oversee and consult with each WF Servicer
as necessary from time-to-time to
carry out the WF Master Servicer's
obligations hereunder, shall receive, review
and evaluate all reports, information and
other data provided to the WF Master
Servicer by each WF Servicer and shall
cause each WF Servicer to perform and
observe the covenants, obligations and
conditions to be performed or observed by
such WF Servicer under the applicable
Servicing Agreement. The WF Master
Servicer shall independently and separately
monitor each WF Servicer's servicing
activities with respect to each related WF
Master Serviced Loan, reconcile the
results of such monitoring with such
information provided in the previous
sentence on a monthly basis and coordinate
corrective adjustments to the WF
Servicers' and the WF Master Servicer's
records, and based on such reconciled
and corrected information, prepare the WF
Master Servicer's Certificate and any
other information and statements required
hereunder. The WF Master Servicer
shall reconcile the results of its Mortgage
Loan monitoring with the actual
remittances of the WF Servicers to the WF
Master Servicer Custodial Account
pursuant to the applicable Servicing
Agreements.
Continuously from the date hereof until the principal and
interest
on all WF Master Serviced Loans are paid in
full, the WF Master Servicer shall
enforce the obligations of the WF Servicers
to collect all payments due under
the terms and provisions of the WF Master
Serviced Loans when the same shall
become due and payable to the extent such
procedures shall be consistent with
the applicable Servicing Agreement.
The relationship of the WF Master Servicer (and of any successor
to
the WF Master Servicer as master servicer
under this Agreement) to the Trustee
and the Securities Administrator under this
Agreement is intended by the parties
to be that of an independent contractor and
not that of a joint venturer,
partner or agent.
(b) The WMMSC Master Servicer shall act as master servicer to
service and administer the WMMSC Master
Serviced Loans on behalf of the Trust in
accordance with the terms hereof,
consistent with prudent mortgage loan
servicing practices and (unless
inconsistent with prudent mortgage loan
servicing practices) in the same manner in
which, and with the same care, skill,
prudence and diligence with which, it
services and administers similar mortgage
loans for other portfolios, and shall have
full power and authority to do or
cause to be done any and all things in
connection with such servicing and
administration which a prudent servicer of
mortgage loans would do under similar
circumstances, including, without
limitation, the power and authority to bring
actions and defend the Trust Estate on
behalf of the Trust in order to enforce
the terms of the related Mortgage Notes.
The WMMSC Master Servicer may perform
its master servicing responsibilities
through agents or independent contractors,
including the WMMSC Servicers, but shall
not thereby be released from any of its
master servicing or servicing
responsibilities hereunder and the WMMSC Master
Servicer shall diligently pursue all of its
rights against such agents or
independent contractors.
The WMMSC Master Servicer shall make reasonable efforts to
collect
or cause to be collected all payments
called for under the terms and provisions
of the WMMSC Master Serviced Loans and
shall, to the extent such procedures
shall be consistent with this Agreement and
the terms and provisions of any
Primary Mortgage Insurance Policy, any FHA
insurance policy or VA guaranty, any
hazard insurance policy, and federal flood
insurance, cause to be followed such
collection procedures as are followed with
respect to mortgage loans comparable
to the WMMSC Master Serviced Loans and held
in portfolios of responsible
mortgage lenders in the local areas where
each Mortgaged Property is located.
The WMMSC Master Servicer shall enforce
"due-on-sale" clauses with respect to
the related Mortgage Loans, to the extent
permitted by law, subject to the
provisions set forth in Section 3.14.
Consistent with the foregoing, the WMMSC Master Servicer may,
in
accordance with prudent mortgage loan
servicing practices, (i) waive or cause to
be waived any assumption fee or late
payment charge in connection with the
prepayment of any WMMSC Master Serviced
Loan and (ii) only upon determining that
the coverage of any applicable insurance
policy or guaranty related to a WMMSC
Master Serviced Loan will not be materially
adversely affected, arrange a
schedule, running for no more than 180 days
after the first delinquent Due Date,
for payment of any delinquent installment
on any Mortgage Note or for the
liquidation of delinquent items. The WMMSC
Master Servicer shall have the right,
but not the obligation, to purchase any
WMMSC Master Serviced Loan delinquent 90
consecutive days or more for an amount
equal to its Purchase Price; provided,
however, that the aggregate Purchase Price
of WMMSC Master Serviced Loans so
purchased pursuant to this sentence shall
not exceed one-half of one percent
(0.50%) of the aggregate Stated Principal
Balance, as of the Cut-off Date, of
all WMMSC Master Serviced Loans. For
purposes of this paragraph, a WMMSC Master
Serviced Loan is considered delinquent for
90 consecutive days if a Monthly
Payment is not received by the first day of
the third month following the month
during which such payment was due.
Consistent with the terms of this Section 3.01, the WMMSC
Master
Servicer may waive, modify or vary any term
of any WMMSC Master Serviced Loan or
consent to the postponement of strict
compliance with any such term or in any
manner grant indulgence to any Mortgagor if
it has determined, exercising its
good faith business judgment in the same
manner as it would if it were the owner
of the related WMMSC Master Serviced Loan,
that the security for, and the timely
and full collectability of, such Mortgage
Loan would not be adversely affected
by such waiver, modification, postponement
or indulgence; provided, however,
that the WMMSC Master Servicer shall not
permit any modification with respect to
any WMMSC Master Serviced Loan that would
(i) change the applicable Mortgage
Interest Rate, defer (except as permitted
in the preceding paragraph) or forgive
the payment of any principal or interest,
reduce the outstanding principal
balance (except for actual payments of
principal) or extend the final maturity
date with respect to such Mortgage Loan, or
(ii) be inconsistent with the terms
of any applicable Primary Mortgage
Insurance Policy, FHA insurance policy, VA
guaranty, hazard insurance policy or
federal flood insurance policy.
Notwithstanding the foregoing, the WMMSC
Master Servicer shall not permit any
modification with respect to any WMMSC
Master Serviced Loan that would both
constitute a sale or exchange of such
Mortgage Loan within the meaning of
Section 1001 of the Code (including any
proposed, temporary or final regulations
promulgated thereunder) (other than in
connection with a proposed conveyance or
assumption of such Mortgage Loan that is
treated as a Principal Prepayment or in
a default situation) and cause any REMIC to
fail to qualify as such under the
Code. The WMMSC Master Servicer shall be
entitled to approve a request from a
Mortgagor for a partial release of the
related Mortgaged Property, the granting
of an easement thereon in favor of another
Person, any alteration or demolition
of the related Mortgaged Property or other
similar matters if it has determined,
exercising its good faith business judgment
in the same manner as it would if it
were the owner of the related WMMSC Master
Serviced Loan, that the security for,
and the timely and full collectability of,
such WMMSC Master Serviced Loan would
not be adversely affected thereby and that
no REMIC created hereby would fail to
continue to qualify as a REMIC under the
Code as a result thereof and that no
tax on "prohibited transactions" or
"contributions" after the startup day would
be imposed on any REMIC as a result
thereof.
The WMMSC Master Servicer is hereby authorized and empowered by
the
Trust to execute and deliver or cause to be
executed and delivered on behalf of
the Holders of the Regular Certificates and
the Class 1-A-LR Certificate, and
the Trust or any of them, any and all
instruments of satisfaction or
cancellation, or of partial or full
release, discharge or modification,
assignments of Mortgages and endorsements
of Mortgage Notes in connection with
refinancings (in jurisdictions where such
assignments are the customary and
usual standard of practice of mortgage
lenders) and all other comparable
instruments, with respect to the WMMSC
Master Serviced Loans and with respect to
the Mortgaged Properties. The WMMSC Master
Servicer is hereby further authorized
and empowered by the Trust to execute and
deliver or cause to be executed and
delivered on behalf of the Holders of the
Regular Certificates and the Residual
Certificates and the Trust, or any of them,
such instruments of assignment or
other comparable instruments as the WMMSC
Master Servicer shall, in its sole
judgment, deem appropriate in order to
register any WMMSC Master Serviced Loan
on the MERS system or to cause the removal
of any WMMSC Master Serviced Loan
from registration thereon. Any expenses
incurred in connection with the actions
described in the preceding sentence shall
be borne by the WMMSC Master Servicer
with no right of reimbursement; provided,
however, that any such expenses
incurred as a result of any termination by
MERS of the MERS system shall be
reimbursable to the WMMSC Master Servicer.
The Trustee on behalf of the Trust
shall execute and furnish to the WMMSC
Master Servicer, at the WMMSC Master
Servicer's direction, any powers of
attorney and other documents prepared by the
WMMSC Master Servicer and determined by the
WMMSC Master Servicer to be
necessary or appropriate to enable the
WMMSC Master Servicer to carry out its
supervisory, servicing and administrative
duties under this Agreement.
In connection with the servicing and administering of each
WMMSC
Master Serviced Loan, the WMMSC Master
Servicer and any affiliate of the WMMSC
Master Servicer (i) may perform services
such as appraisals, default management
and (in the case of affiliates only)
brokerage services that are not customarily
provided by servicers of mortgage loans,
and shall be entitled to reasonable
compensation therefor and (ii) may, at its
own discretion and on behalf of the
Trust, obtain credit information in the
form of a "credit score" from a credit
repository.
Section 3.02 Monitoring of WF Servicers.
(a) The WF Master Servicer shall be responsible for reporting to
the
Trustee, the Securities Administrator and
the Depositor the compliance by each
WF Servicer with its duties under the
related Servicing Agreement. In the review
of each WF Servicer's activities, the WF
Master Servicer may rely upon an
officer's certificate of the WF Servicer
with regard to such WF Servicer's
compliance with the terms of its Servicing
Agreement. In the event that the WF
Master Servicer, in its judgment,
determines that a WF Servicer should be
terminated in accordance with its Servicing
Agreement, or that a notice should
be sent pursuant to such Servicing
Agreement with respect to the occurrence of
an event that, unless cured, would
constitute grounds for such termination, the
WF Master Servicer shall notify the
Depositor, the Securities Administrator and
the Trustee thereof and the WF Master
Servicer shall issue such notice or take
such other action as it deems
appropriate.
(b) The WF Master Servicer, for the benefit of the Trustee and
the
Certificateholders, shall enforce the
obligations of each WF Servicer under the
related Servicing Agreement, and shall, in
the event that a WF Servicer fails to
perform its obligations in accordance with
the related Servicing Agreement,
subject to the preceding paragraph,
terminate the rights and obligations of such
WF Servicer thereunder and act as successor
WF Servicer of the related WF Master
Serviced Loans under the applicable
Servicing Agreement (except, in the case of
the termination of Wells Fargo Bank as a
Servicer under the Wells Fargo
Servicing Agreement, the Trustee shall
either act as successor Servicer or shall
appoint a successor Servicer of the related
WF Master Serviced Loans under the
Wells Fargo Servicing Agreement) or cause
the Trustee to enter in to a new
Servicing Agreement with a successor
Servicer selected by the WF Master Servicer
(except, in the case of the Wells Fargo
Servicing Agreement, the Trustee shall
select the successor Servicer); provided,
however, it is understood and
acknowledged by the parties hereto that
there will be a period of transition
(not to exceed 90 days) before the actual
servicing functions can be fully
transferred to such successor WF Servicer.
Such enforcement, including, without
limitation, the legal prosecution of
claims, termination of Servicing Agreements
and the pursuit of other appropriate
remedies, shall be in such form and carried
out to such an extent and at such time as
the WF Master Servicer, in its good
faith business judgment, would require were
it the owner of the related WF
Master Serviced Loans. The WF Master
Servicer and Trustee, as applicable, shall
pay the costs of such enforcement at its
own expense, and shall be reimbursed
therefor only (i) from a general recovery
resulting from such enforcement to the
extent, if any, that such recovery exceeds
all amounts due in respect of the
related WF Master Serviced Loan or (ii)
from a specific recovery of costs,
expenses or attorneys fees against the
party whom such enforcement is directed,
provided that the WF Master Servicer and
the Trustee, as applicable, shall not
be required to prosecute or defend any
legal action except to the extent that
the WF Master Servicer or the Trustee, as
applicable, shall have received
reasonable indemnity for its costs and
expenses in pursuing such action.
(c) To the extent that the costs and expenses of the WF Master
Servicer or the Trustee, as applicable,
related to any termination of a WF
Servicer, appointment of a successor WF
Servicer or the transfer and assumption
of servicing by the WF Master Servicer or
the Trustee, as applicable, with
respect to any Servicing Agreement
(including, without limitation, (i) all legal
costs and expenses and all due diligence
costs and expenses associated with an
evaluation of the potential termination of
the WF Servicer as a result of an
Event of Default by such WF Servicer and
(ii) all costs and expenses associated
with the complete transfer of servicing,
including all servicing files and all
servicing data and the completion,
correction or manipulation of such servicing
data as may be required by the successor WF
Servicer to correct any errors or
insufficiencies in the servicing data or
otherwise to enable the successor
Servicer to service the WF Master Serviced
Loans in accordance with the related
Servicing Agreement) are not fully and
timely reimbursed by the terminated WF
Servicer, the WF Master Servicer or the
Trustee, as applicable, shall be
entitled to reimbursement of such costs and
expenses from the WF Master Servicer
Custodial Account.
(d) The WF Master Servicer shall require each WF Servicer to
comply
with the remittance requirements and other
obligations set forth in the related
Servicing Agreement.
(e) If the WF Master Servicer acts as WF Servicer, it will not
assume liability for the representations
and warranties of the WF Servicer, if
any, that it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
Each
Master Servicer and WMMSC Servicer shall
maintain, at its own expense, a blanket
fidelity bond and an errors and omissions
insurance policy, with broad coverage
on all officers, employees or other persons
involved in the performance of its
obligations as Master Servicer hereunder or
with respect to a WMMSC Servicer,
their obligations under the applicable
Servicing Contract. These policies must
insure the Master Servicers and WMMSC
Servicers against losses resulting from
dishonest or fraudulent acts committed by
the related Master Servicer's or WMMSC
Servicer's personnel, any employees of
outside firms that provide data
processing services for the related Master
Servicer or WMMSC Servicer, and
temporary contract employees or student
interns. No provision of this Section
3.03 requiring such fidelity bond and
errors and omissions insurance shall
diminish or relieve the Master Servicers or
WMMSC Servicer from its duties and
obligations as set forth in this Agreement
or in a Servicing Contract, as
applicable. The minimum coverage under any
such bond and insurance policy shall
be at least equal to the corresponding
amounts required by FNMA in the FNMA
Servicing Guide or by FHLMC in the FHLMC
Sellers' & Servicers' Guide, as amended
or restated from time to time, or in an
amount as may be permitted to the Master
Servicers or WMMSC Servicer by express
waiver of FNMA or FHLMC. In the event
that any such policy or bond ceases to be
in effect, the Master Servicers and
WMMSC Servicers shall obtain a comparable
replacement policy or bond from an
insurer or issuer, meeting the requirements
set forth above as of the date of
such replacement.
Section 3.04 Access to Certain Documentation.
The WMMSC Master Servicer and the WF Master Servicer shall
provide,
and the WF Master Servicer shall cause each
WF Servicer to provide in accordance
with the related Servicing Agreement, to
the OTS, the OCC, the FDIC and to
comparable regulatory authorities
supervising Holders of Certificates and the
examiners and supervisory agents of the
OTS, the OCC, the FDIC and such other
authorities, access to the documentation
required by applicable regulations of
the OTS, the OCC, the FDIC and such other
authorites with respect to the
Mortgage Loans and shall in any event
provide such access to the documentation
regarding such Mortgage Loans to the
Trustee, the Securities Administrator and
their representatives. Such access shall be
afforded without charge, but only
upon reasonable and prior written request
and during normal business hours at
the offices designated by the related
Master Servicer and the related Servicer.
In fulfilling such request for access, the
WF Master Servicer shall not be
responsible to determine the sufficiency of
any information provided by such WF
Servicer. Nothing in this Section 3.04
shall limit the obligation of the related
Master Servicer and the related Servicer to
observe any applicable law and the
failure of the related Master Servicer or
the related Servicer to provide access
as provided in this Section 3.04 as a
result of such obligation shall not
constitute a breach of this Section
3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The WF Master Servicer shall not take, or permit any WF
Servicer
(to the extent such action is prohibited
under the applicable Servicing
Agreement) to take, any action that would
result in noncoverage under any
applicable Primary Mortgage Insurance
Policy of any loss which, but for the
actions of such the WF Master Servicer or
WF Servicer, would have been covered
thereunder. The WF Master Servicer shall
use its best reasonable efforts to
cause each WF Servicer (to the extent
required under the related Servicing
Agreement) to keep in force and effect (to
the extent that the WF Master
Serviced Loan requires the Mortgagor to
maintain such insurance), primary
mortgage insurance applicable to each WF
Master Serviced Loan in accordance with
the provisions of this Agreement and the
related Servicing Agreement, as
applicable. The WF Master Servicer shall
not, and shall not permit any WF
Servicer (to the extent required under the
related Servicing Agreement) to,
cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is in
effect at the date of the initial issuance
of the Mortgage Note and is required
to be kept in force hereunder except in
accordance with the provisions of this
Agreement and the related Servicing
Agreement, as applicable.
(b) The WF Master Servicer agrees to present, or to cause each
WF
Servicer (to the extent required under the
related Servicing Agreement) to
present, on behalf of the Trustee and the
Certificateholders, claims to the
insurer under any Primary Mortgage
Insurance Policies and, in this regard, to
take such reasonable action as shall be
necessary to permit recovery under any
Primary Mortgage Insurance Policies
respecting defaulted WF Master Serviced
Loans. Pursuant to Sections 3.08 and 3.09,
any amounts collected by the WF
Master Servicer or any WF Servicer under
any Primary Mortgage Insurance Policies
shall be deposited in the WF Master
Servicer Custodial Account, subject to
withdrawal pursuant to Section 3.11.
(c) The WMMSC Master Servicer shall use commercially reasonable
efforts to keep, and to cause the WMMSC
Servicers to keep, in full force and
effect each Primary Mortgage Insurance
Policy with respect to a WMMSC Master
Serviced Loan with a Loan-to-Value Ratio in
excess of 80%, until no longer
required or until no longer permitted under
applicable law. Notwithstanding the
foregoing, the WMMSC Master Servicer shall
have no obligation to maintain any
Primary Mortgage Insurance Policy for a
WMMSC Master Serviced Loan for which the
outstanding Principal Balance thereof at
any time subsequent to origination was
80% or less of the Appraised Value of the
related Mortgaged Property, unless
required by applicable law.
Unless required by applicable law, the WMMSC Master Servicer
shall
not cancel or refuse to renew, or allow any
WMMSC Servicer under its supervision
to cancel or refuse to renew, any Primary
Mortgage Insurance Policy in effect at
the date of the initial issuance of the
Certificates that is required to be kept
in force hereunder; provided, however, that
neither the WMMSC Master Servicer
nor any WMMSC Servicer shall advance funds
for the payment of any premium due
under any Primary Mortgage Insurance Policy
if it shall determine that such an
advance would be a Nonrecoverable
Advance.
The WMMSC Master Servicer agrees to present, or cause to be
presented, on behalf of and for the benefit
of the Trust, claims under the
Primary Mortgage Insurance Policy
respecting any WMMSC Master Serviced Loan, and
in this regard to take such reasonable
actions as shall be necessary to permit
recovery under such Primary Mortgage
Insurance Policy.
Section 3.06 Rights of the Depositor, the Securities
Administrator
and the Trustee in Respect of the Master
Servicers.
The Depositor may, but is not obligated to, enforce the
obligations
of the Master Servicers hereunder and may,
but is not obligated to, perform, or
cause a designee to perform, any defaulted
obligation of either Master Servicer
hereunder and in connection with any such
defaulted obligation to exercise the
related rights of a Master Servicer
hereunder; provided that a Master Servicer
shall not be relieved of any of its
obligations hereunder by virtue of such
performance by the Depositor or its
designee. None of the Securities
Administrator, the Trustee or the Depositor
shall have any responsibility or
liability for any action or failure to act
by either Master Servicer and the
Securities Administrator, the Trustee or
the Depositor shall not be obligated to
supervise the performance of a Master
Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
In the event a Master Servicer or any successor master servicer
shall for any reason no longer be a Master
Servicer hereunder (including by
reason of an Event of Default), the Trustee
as trustee hereunder shall within 90
days of such time, assume, if it so elects,
or shall appoint a successor Master
Servicer to assume, all of the rights and
obligations of such Master Servicer
hereunder and all of the rights and
obligations of such Master Servicer under
the Servicing Contracts or Servicing
Agreements, as applicable, with respect to
the related Mortgage Loans, unless the
Trustee elects to terminate the Servicing
Contracts or Servicing Agreements, as
applicable, with respect to such Mortgage
Loans in accordance with the terms thereof.
Unless the Trustee so elects to
terminate the Servicing Contracts or
Servicing Agreements, as applicable, the
Trustee, its designee or the successor
master servicer for the Trustee shall be
deemed to have assumed all of the
applicable Master Servicer's interest therein
with respect to the related Mortgage Loans
and to have replaced the applicable
Master Servicer as a party to the Servicing
Contracts or Servicing Agreements,
as applicable, to the same extent as if the
rights and duties under the
Servicing Contracts or Servicing Agreements
relating to such Mortgage Loans had
been assigned to the assuming party, except
that the related Master Servicer
shall not thereby be relieved of any
liability or obligations under the
Servicing Contracts or Servicing
Agreements, as applicable, with respect to the
related Master Servicer's duties to be
performed prior to its termination
hereunder. Any such assumption shall be
subject to Sections 7.02 and 8.05.
In addition, with respect to the WMMSC Master Serviced Loans
for
which the WMMSC Master Servicer has not
entered into a Servicing Contract, if
the WMMSC Master Servicer shall for any
reason no longer be the WMMSC Master
Servicer, the Trustee as trustee hereunder
shall assume, within 90 days of such
time, or shall appoint a successor Servicer
to assume, all of the rights and
obligations of the WMMSC Master Servicer as
WMMSC Servicer with respect to such
WMMSC Mortgage Loans.
A Master Servicer at its expense shall, upon request of the
Trustee,
deliver to the assuming party all documents
and records relating to the
Servicing Contracts and the Mortgage Loans
then being master serviced and
serviced by such Master Servicer and an
accounting of amounts collected and held
by such Master Servicer, and shall transfer
control of the related Master
Servicer Custodial Account, Escrow Accounts
and any investment accounts to the
successor Master Servicer, and otherwise
use its best efforts to effect the
orderly and efficient transfer of the
rights and duties under the related
Servicing Contracts relating to such
Mortgage Loans to the assuming party. The
Trustee shall be entitled to be reimbursed
from the predecessor Master Servicer
(or the Trust if the predecessor Master
Servicer is unable to fulfill such
obligations) for all Master Servicing
Transfer Costs.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts.
(a) The WF Master Servicer shall enforce the obligation of each
WF
Servicer to establish and maintain a
Servicer Custodial Account in accordance
with the applicable Servicing Agreement,
with records to be kept with respect
thereto on a loan by loan basis, into which
accounts shall be deposited within
48 hours (or as of such other time
specified in the related Servicing Agreement)
of receipt all collections of principal and
interest on any WF Master Serviced
Loan and all collections with respect to
any REO Property received by a WF
Servicer, including Principal Prepayments,
Insurance Proceeds, Liquidation
Proceeds, Recoveries and Advances made from
the WF Servicer's own funds (less
servicing compensation as permitted by the
applicable Servicing Agreement in the
case of any WF Servicer) and all other
amounts to be deposited in the WF
Servicer Custodial Account. The WF Master
Servicer is hereby authorized to make
withdrawals from and deposits to the
related Servicer Custodial Account for
purposes required or permitted by this
Agreement.
To the extent required by the related Servicing Agreement and by
the
related Mortgage Note and not violative of
current law, the WF Master Servicer
shall require each WF Servicer to establish
and maintain one or more escrow
accounts (for each WF Servicer,
collectively, the "WF Escrow Account") and
deposit and retain therein all collections
from the Mortgagors (or Advances by
such WF Servicer) for the payment of taxes,
assessments, hazard insurance
premiums or comparable items for the
account of the Mortgagors. Nothing herein
shall require the WF Master Servicer to
compel a WF Servicer to establish a WF
Escrow Account in violation of applicable
law.
(b) The WMMSC Master Servicer shall cause to be established and
maintained by each WMMSC Servicer under the
WMMSC Master Servicer's supervision
a Servicer Custodial Account and one or
more escrow accounts (the "WMMSC Escrow
Accounts") and shall deposit or cause to be
deposited therein daily the amounts
related to the WMMSC Master Serviced Loans
required by the Servicing Contracts
to be so deposited. The WMMSC Master
Servicer or the WMMSC Servicer shall
deposit in the applicable WMMSC Escrow
Account on a daily basis all Escrow
Payments received by it. Proceeds received
with respect to individual Mortgage
Loans from any title, hazard, or FHA
insurance policy, VA guaranty, Primary
Mortgage Insurance Policy or other
insurance policy covering such WMMSC Master
Serviced Loans, if required for the
restoration or repair of the related
Mortgaged Property, may be deposited either
in the WMMSC Escrow Account or a
Servicer Custodial Account. Such proceeds,
if not required for the restoration
or repair of the related Mortgaged
Property, shall be deposited in the related
Servicer Custodial Account, and shall be
applied to the balances of the related
WMMSC Master Serviced Loans as payments of
interest and principal. If the WMMSC
Master Servicer discovers that any Servicer
Custodial Account or WMMSC Escrow
Account maintained by a WMMSC Servicer is
not maintained with an institution
meeting the requirements of the first
sentence of the definition of Eligible
Institution, then the WMMSC Master Servicer
shall cause such account to be
transferred to an Eligible Institution
within two Business Days of such
discovery.
The WMMSC Master Servicer is hereby authorized to make
withdrawals
from and to issue drafts against the WMMSC
Servicer Custodial Accounts and the
WMMSC Escrow Accounts for the purposes
required or permitted by this Agreement.
Each WMMSC Servicer Custodial Account and each WMMSC Escrow
Account
shall bear a designation clearly showing
the respective interests of the
applicable WMMSC Servicer, as trustee, and
of the WMMSC Master Servicer, in
substantially one of the following
forms:
With respect to the Servicer Custodial Account of a WMMSC
Servicer:
(i) {Servicer's Name}, in trust for
Washington Mutual Mortgage Securities Corp.
or (ii) {Servicer's Name}, as agent,
trustee and/or bailee of principal and
interest custodial account for Washington
Mutual Mortgage Securities Corp. and
its successors and assigns.
With respect to the WMMSC Escrow Account: (i) {Servicer's Name},
in
trust for Washington Mutual Mortgage
Securities Corp. or (ii) {Servicer's Name},
as agent, trustee and/or bailee of taxes
and insurance custodial account for
Washington Mutual Mortgage Securities Corp.
and its successors and assigns.
The WMMSC Master Servicer hereby undertakes to assure remittance
to
the Certificate Account of all amounts
relating to the WMMSC Master Serviced
Loans that have been collected by any WMMSC
Servicer and are due to the
Certificate Account pursuant to this
Agreement.
Funds held in the WMMSC Servicer Custodial Account and the
WMMSC
Escrow Account may, at the WMMSC Master
Servicer's option, be invested in one or
more Permitted Investments which shall in
no event mature later than the
Business Day prior to the related
Withdrawal Date (except that if such Permitted
Investments are obligations of or managed
by the institution that maintains such
account, then such Permitted Investment
shall mature not later than such
Withdrawal Date). The WMMSC Master Servicer
shall bear any and all losses
incurred on any investments made with such
funds and shall be entitled to retain
any gains realized on such investments as
additional master servicing
compensation.
Section 3.09 Collection of Mortgage Loan Payments; Master
Servicer
Custodial Accounts and Certificate
Account.
(a) The Securities Administrator shall establish and maintain
the
Certificate Account, which shall be deemed
to consist of six sub-accounts. The
Securities Administrator shall, promptly
upon receipt, deposit in the
Certificate Account and retain therein any
amounts which are required to be
deposited in the Certificate Account by the
Securities Administrator.
(b) Each Master Servicer shall establish and maintain a Master
Servicer Custodial Account, which shall be
an Eligible Account. Each Master
Servicer shall, promptly upon receipt,
deposit in the related Master Servicer
Custodial Account and retain therein any
amounts which are required to be
deposited in such Master Servicer Custodial
Account by such Master Servicer.
(c) The WF Master Servicer shall deposit or cause to be
deposited
into the WF Master Servicer Custodial
Account, on the same Business Day of
receipt (except as otherwise specifically
provided herein), the following
payments and collections remitted to the WF
Master Servicer by each WF Servicer
from its respective Servicer Custodial
Account pursuant to the related Servicing
Agreement or otherwise or received by the
WF Master Servicer in respect of the
WF Master Serviced Loans subsequent to the
Cut-off Date (other than in respect
of principal and interest due on the WF
Master Serviced Loans on or before the
Cut-off Date) and the following amounts
required to be deposited hereunder:
(i) all payments on account of principal of the WF Master
Serviced
Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the WF Master
Serviced
Loans, net
of the related Servicing Fee;
(iii) with respect to each WF Master Serviced Loan, (A) all
Insurance
Proceeds and Liquidation Proceeds, other than Insurance
Proceeds
to be (1)
applied to the restoration or repair of the Mortgaged Property,
(2)
released to the Mortgagor in accordance with Customary
Servicing
Procedures
or (3) required to be deposited to an WF Escrow Account
pursuant
to Section 3.08 and (B) any Insurance Proceeds released from an
Escrow
Account;
(iv) any amount required to be deposited by the WF Master
Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the WF Master Servicer Custodial
Account;
(v) any amounts relating to REO Property required to be remitted
by
the
applicable WF Servicer;
(vi) WF Servicer Periodic Advances made by the applicable WF
Servicer
pursuant to the related Servicing Agreement (or, if applicable,
by the WF
Master Servicer or the Trustee pursuant to Section 3.21) and
any
Compensating Interest paid by the applicable WF Servicer pursuant
to the
related
Servicing Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts
and
all WF
Master Serviced Loan Reimbursement Amounts to the extent
received
by the WF
Servicer;
(viii) any Recoveries relating to the WF Master Serviced Loans;
(ix) any other amounts required to be deposited hereunder.
(d) The WMMSC Master Servicer shall deposit or cause to be
deposited
into the WMMSC Master Servicer Custodial
Account, on the same Business Day of
receipt (except as otherwise specifically
provided herein), the following
payments and collections remitted by the
WMMSC Servicers or received by it in
respect of the WMMSC Master Serviced Loans
subsequent to the Cut-off Date (other
than in respect of principal and interest
due on the WMMSC Master Serviced Loans
on or before the Cut-off Date) and the
following amounts required to be
deposited hereunder:
(i) all payments on account of principal of the WMMSC Master
Serviced
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the WMMSC Master
Serviced
Loans, net of the related Servicing Fee;
(iii) with respect to each WMMSC Master Serviced Loan, (A) all
Insurance
Proceeds and Liquidation Proceeds, other than Insurance
Proceeds
to be (1)
applied to the restoration or repair of the Mortgaged Property,
(2)
released to the Mortgagor in accordance with Customary
Servicing
Procedures
or (3) required to be deposited to an WMMSC Escrow Account
pursuant
to Section 3.08 and (B) any Insurance Proceeds released from an
WMMSC
Escrow Account;
(iv) any amount required to be deposited by such Master
Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with
respect to the WMMSC Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted
by
the
applicable WMMSC Servicer;
(vi) WMMSC Advances made by the applicable WMMSC Servicer
pursuant
to the
related Servicing Agreement (or, if applicable, by the WMMSC
Master
Servicer
or the Trustee pursuant to Section 3.21) and any Compensating
Interest
paid by the applicable WMMSC Servicer;
(vii) all Purchase Prices, all Substitute Adjustment Amounts and
all
WMMSC
Master Serviced Loan Reimbursement Amounts to the extent received
by
the WMMSC
Servicer;
(viii) any Recoveries relating to the WMMSC Master Serviced
Loans;
and
(ix) any other amounts required to be deposited hereunder.
If a Master Servicer shall deposit any amount not required to
be
deposited, it may at any time withdraw such
amount from the applicable Master
Servicer Custodial Account, any provision
herein to the contrary
notwithstanding. All funds required to be
deposited in the Master Servicer
Custodial Accounts shall be held by the
Master Servicers in trust for the
Certificateholders until disbursed in
accordance with this Agreement or
withdrawn in accordance with Section
3.11.
(e) Each institution at which the WF Master Servicer Custodial
Account and the WMMSC Master Servicer
Custodial Account is maintained shall
invest the funds therein as directed in
writing by the related Master Servicer
in Permitted Investments, which shall
mature not later than the Business Day
next preceding the Distribution Date
(except that if such Permitted Investment
is an obligation of the institution that
maintains such account, then such
Permitted Investment shall mature not later
than such Distribution Date) and, in
each case, shall not be sold or disposed of
prior to its maturity. All such
Permitted Investments shall be made in the
name of the Trustee, for the benefit
of the Certificateholders. All WF Master
Servicer Custodial Account Reinvestment
Income shall be for the benefit of the WF
Master Servicer as part of its master
servicing compensation and shall be
remitted to the WF Master Servicer monthly
as provided herein. All WMMSC Master
Servicer Custodial Account Reinvestment
Income shall be for the benefit of the
WMMSC Master Servicer as part of its
master servicing compensation and shall be
remitted to the WMMSC Master Servicer
monthly as provided herein. The amount of
any losses realized in a Master
Servicer Custodial Account incurred in any
such account in respect of any such
investments shall promptly be deposited by
the related Master Servicer from its
own funds in the related Master Servicer
Custodial Account.
(f) Each institution at which the Certificate Account is
maintained
shall invest the funds therein if directed
in writing by the Securities
Administrator in Permitted Investments that
are obligations of the institution
that maintains the Certificate Account,
which shall mature on the Distribution
Date and shall not be sold or disposed of
prior to its maturity. All such
Permitted Investments shall be made in the
name of the Trustee, for the benefit
of the Certificateholders. All income and
gains net of any losses realized since
the preceding Distribution Date from
Permitted Investments of funds in the
Certificate Account shall be for the
benefit of the Securities Administrator as
additional compensation and the amount of
any losses realized in the Certificate
Account in respect of any such Permitted
Investments shall promptly be deposited
by the Securities Administrator from its
own funds in the Certificate Account.
(g) The Master Servicers shall give notice to the Depositor,
the
Trustee, the Securities Administrator and
the Rating Agencies of any proposed
change of location of each Master Servicer
Custodial Account not later than 30
days after and not more that 45 days prior
to any change thereof. The Securities
Administrator shall give notice to the
Depositor, the Trustee, the Master
Servicers and the Rating Agencies of any
proposed change of the location of the
Certificate Account maintained by the
Securities Administrator not later than 30
days after and not more than 45 days prior
to any change thereof. The creation
of the Master Servicer Custodial Accounts
and the Certificate Account shall be
evidenced by a certification substantially
in the form of Exhibit F hereto.
(h) The Securities Administrator shall designate each of the
Pooling
REMIC Sub-Account and the Upper-Tier
Certificate Sub-Account as a sub-account of
the Certificate Account. On each
Distribution Date (other than the Final
Distribution Date, if such Final
Distribution Date is in connection with a
purchase of the assets of the Trust Estate
by a Master Servicer), (i) the
Securities Administrator shall, from funds
available on deposit in the
Certificate Account, be deemed to deposit
into the Pooling REMIC Sub-Account all
funds deemed on deposit in the Group REMIC
Sub-Accounts and (ii) immediately
thereafter, from funds deemed on deposit in
the Pooling REMIC Sub-Account, the
Securities Administrator shall be deemed to
deposit into the Upper-Tier
Certificate Sub-Account the Pooling REMIC
Distribution Amount.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The WF Master Servicer shall afford and shall enforce the
obligation
of the WF Servicers to afford and the WMMSC
Master Servicer shall afford and
shall enforce the obligation of the WMMSC
Servicers to afford, the Securities
Administrator and the Trustee reasonable
access to all records and documentation
regarding the Mortgage Loans and all
accounts, insurance information and other
matters relating to this Agreement, such
access being afforded without charge,
but only upon reasonable request and during
normal business hours at the office
designated by the related Master Servicer
or the applicable Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account,
the
Master Servicer Custodial Accounts and the
Servicer Custodial Accounts.
(a) The WMMSC Master Servicer is authorized to make withdrawals
from
time to time, from the WMMSC Master
Servicer Custodial Account or the Servicer
Custodial Accounts established by any WMMSC
Servicers of amounts deposited
therein in respect of the Certificates
(and, to the extent applicable, to make
deposits of the amounts withdrawn), as
follows:
(i) To reimburse itself or the applicable WMMSC Servicer for
WMMSC
Advances
made pursuant to Section 3.21 or a Servicing Contract, as
applicable, such right to reimbursement pursuant to this paragraph
(i)
being
limited to amounts received on particular Mortgage Loans
(including,
for this
purpose, Insurance Proceeds and Liquidation Proceeds) which
represent
late recoveries of principal and/or interest respecting which
any such
WMMSC Advance was made;
(ii) To reimburse itself or the applicable WMMSC Servicer for
amounts
expended by or for the account of the WMMSC Master Servicer
pursuant
to Section 3.15 or amounts expended by such WMMSC Servicer
pursuant
to the Servicing Contracts in connection with the restoration
of
property
damaged by an Uninsured Cause or in connection with the
liquidation of a Mortgage Loan;
(iii) To pay to itself, with respect to the related WMMSC
Master
Serviced
Loans, the WMMSC Master Servicing Fee to which it is entitled
to
pursuant
to Section 3.18 (net of Compensating Interest reduced by Payoff
Earnings
and Payoff Interest) as to which no prior withdrawals from
funds
deposited
by the WMMSC Master Servicer have been made;
(iv) To reimburse itself or the applicable WMMSC Servicer for
advances
made with respect to related WMMSC Mortgage Loans (except for
WMMSC
Mortgage Loans purchased pursuant to a Purchase Obligation or
pursuant
to the second sentence of the third paragraph of Section
3.01(b))
which the WMMSC
Master Servicer has determined to be Nonrecoverable
Advances,
such reimbursement pursuant to this clause (iv) being made
first
from
amounts received on the WMMSC Mortgage Loans in the same Loan
Group
as the
Mortgage Loan in respect of which such Nonrecoverable Advance
was
made;
(v) To pay itself any WMMSC Master Servicer Custodial Account
Reinvestment Income;
(vi) To reimburse itself for expenses incurred by and
reimbursable
to it
pursuant to Section 7.03;
(vii) To remit to the Securities Administrator for deposit in
the
Certificate Account, not later than the related Remittance Date,
the
amounts in
the WMMSC Master Servicer Custodial Account specified in
Section
3.09(d);
(viii) To clear and terminate the WMMSC Master Servicer
Custodial
Account
and following termination of this Agreement pursuant to Section
10.01.
If the WMMSC Master Servicer fails to remit the funds described
in
Section 3.11(a)(vii) above to the
Securities Administrator on the applicable
Remittance Date (not considering any cure
period afforded to the WMMSC Master
Servicer for such remittance under Section
8.01(a)), the WMMSC Master Servicer
shall pay to the Securities Administrator,
for its own account, interest accrued
on such funds at the prime rate as set
forth in The Wall Street Journal from and
including the applicable Remittance Date to
but excluding the day such funds are
paid to the Securities Administrator.
Since, in connection with withdrawals pursuant to paragraphs (i)
and
(ii), the WMMSC Master Servicer's
entitlement thereto is limited to collections
or other recoveries on the related Mortgage
Loan, the WMMSC Master Servicer or
the applicable WMMSC Servicer shall keep
and maintain separate accounting for
each WMMSC Mortgage Loan, for the purpose
of justifying any such withdrawals.
(b) The Securities Administrator shall withdraw funds from the
Certificate Account to reimburse the
Depositor for expenses incurred by it and
reimbursable pursuant to this Agreement,
including but not limited to, Section
7.03, to pay itself and the Trustee any
amounts due itself or the Trustee under
this Agreement (including, but not limited
to, the Securities Administrator Fee
and all amounts provided for under Section
9.11, other than the amounts provided
for in the first sentence of Section 9.11)
and for distributions to
Certificateholders in the manner specified
in this Agreement. In addition, the
WF Master Servicer may from time to time
make withdrawals from the WF Master
Servicer Custodial Account for the
following purposes:
(i) to pay to the WF Servicers (to the extent not previously
retained
by them), the Servicing Fee to which they are entitled pursuant
to the
Servicing Agreements and to pay itself any WF Master Servicer
Custodial
Account Reinvestment Income;
(ii) [Reserved];
(iii) to reimburse the WF Servicers (or, if applicable, itself
or
the
Trustee) for unreimbursed Advances made pursuant to the related
Servicing
Agreement (or in the case of itself or the Trustee, pursuant to
Section
3.21), such right of reimbursement pursuant to this clause
(iii)
being limited
first to amounts received on the Mortgage Loans serviced by
such WF
Servicer in the related Loan Group in respect of which any such
Advance
was made and then limited to amounts received on all the
Mortgage
Loans
serviced by such Servicer;
(iv) to reimburse the WF Servicers (or, if applicable, itself or
the
Trustee)
for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to
amounts
received
on the WF Master Serviced Loans serviced by such Servicer in
the
same Loan
Group as the Mortgage Loan(s) in respect of which such
Nonrecoverable Advance was made and then limited to amounts
received on
all the
Mortgage Loans serviced by such Servicer;
(v) to reimburse the WF Servicers for Insured Expenses from the
related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02, 2.04,
2.09
or
3.15(g), all amounts received thereon after the date of such
purchase;
(vii) to reimburse itself for expenses incurred by it and
reimbursable pursuant to this Agreement, including but not limited
to,
Section
7.03;
(viii) to withdraw any amount deposited in the WF Master
Servicer
Custodial
Account and not required to be deposited therein; and
(ix) to clear and terminate the WF Master Servicer Custodial
Account
upon
termination of this Agreement pursuant to Section 10.01.
If a Master Servicer shall remit to the Securities Administrator
any
amount not required to be remitted, it may
at any time direct the Securities
Administrator to withdraw such amount from
the Certificate Account, any
provision herein to the contrary
notwithstanding. Such direction may be
accomplished by delivering an Officer's
Certificate to the Securities
Administrator which describes the amounts
remitted in error to the Securities
Administrator for deposit to the
Certificate Account. In no event shall the
Securities Administrator incur liability
for withdrawals from the Certificate
Account at the direction of either Master
Servicer.
(c) Each Servicer and each Master Servicer is authorized to
make
withdrawals, from time to time, from the
related Servicer Custodial Account or
related Master Servicer Custodial Account,
(i) to pay to itself, with respect to
the related Mortgage Loans, the Servicing
Fee and (ii) to reimburse itself for
expenses to the same extent that the WMMSC
Master Servicer is authorized to make
withdrawals to reimburse the applicable
WMMSC Servicer for expenses pursuant to
clauses (i), (ii) and (iv) of Section
3.11(a), in the case of each of clause (i)
and (ii) of this Section 3.11(c), to the
extent no prior withdrawals of such
amounts have been made by the related
Servicer or the related Master Servicer.
(d) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be on deposit in the
Group REMIC Sub-Accounts shall be
used to make payments on the Class 1-A-LR
Certificate in respect of the Group
REMICs as provided in Sections 5.01 and
5.02. On each Distribution Date, funds
on deposit in the Certificate Account and
deemed to be on deposit in the Pooling
REMIC Sub-Account shall be used to make
payments on the Class 1-A-LR Certificate
in respect of the Pooling REMIC as provided
in Sections 5.01 and 5.02. On each
Distribution Date, funds on deposit in the
Certificate Account and deemed to be
on deposit in the Upper-Tier Certificate
Sub-Account shall be used to make
payments on the Regular Certificates as
provided in Sections 5.01 and 5.02. The
Certificate Account shall be cleared and
terminated upon termination of this
Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance and Other
Insurance.
(a) For each WF Master Serviced Loan, the WF Master Servicer
shall
enforce any obligation of the WF Servicers
under the related Servicing
Agreements to maintain or cause to be
maintained fire, flood and hazard
insurance with extended coverage customary
in the area where the Mortgaged
Property is located in accordance with the
related Servicing Agreements. It is
understood and agreed that such insurance
provided for in this Section 3.12
shall be with insurers meeting the
eligibility requirements set forth in the
applicable Servicing Agreement and that no
earthquake or other additional
insurance is to be required of any
Mortgagor or to be maintained on property
acquired in respect of a defaulted loan,
other than pursuant to such applicable
laws and regulations as shall at any time
be in force and as shall require such
additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
WF
Master Servicer, or by any WF Servicer,
under any insurance policies (other than
amounts to be applied to the restoration or
repair of the property subject to
the related Mortgage or released to the
Mortgagor in accordance with the
applicable Servicing Agreement) shall be
deposited into the applicable Master
Servicer Custodial Account, subject to
withdrawal pursuant to Sections 3.09 and
3.11. Any cost incurred by the WF Master
Servicer or any WF Servicer in
maintaining any such insurance if the
Mortgagor defaults in its obligation to do
so shall be added to the amount owing under
the WF Master Serviced Loan where
the terms of the WF Master Serviced Loan so
permit; provided, however, that the
addition of any such cost shall not be
taken into account for purposes of
calculating the distributions to be made to
Certificateholders and shall be
recoverable by the WF Master Servicer or
such WF Servicer pursuant to Sections
3.08 and 3.09.
(b) WMMSC Master Servicer shall cause to be maintained for each
WMMSC Master Serviced Loan (other than a
Cooperative Loan) fire insurance with
extended coverage in an amount which is not
less than the original principal
balance of such WMMSC Master Serviced Loan,
except in cases approved by the
WMMSC Master Servicer in which such amount
exceeds the value of the improvements
to the Mortgaged Property. The WMMSC Master
Servicer shall also require fire
insurance with extended coverage in a
comparable amount on property acquired
upon foreclosure, or deed in lieu of
foreclosure, of any WMMSC Master Serviced
Loan (other than a Cooperative Loan). Any
amounts collected under any such
policies (other than amounts to be applied
to the restoration or repair of the
related Mortgaged Property) shall be
deposited into the related Servicer
Custodial Account, subject to withdrawal
pursuant to Sections 3.09 and 3.11. Any
unreimbursed costs incurred in maintaining
any insurance described in this
Section 3.12 shall be recoverable as an
Advance by the WMMSC Master Servicer
from the WMMSC Master Servicer Custodial
Account or the Certificate Account.
Such insurance shall be with insurers
approved by the WMMSC Master Servicer and
FNMA or FHLMC. Other additional insurance
may be required of a Mortgagor, in
addition to that required pursuant to such
applicable laws and regulations as
shall at any time be in force and as shall
require such additional insurance.
Where any part of any improvement to the
Mortgaged Property (other than a
Mortgaged Property secured by a Cooperative
Loan) is located in a federally
designated special flood hazard area and in
a community which participates in
the National Flood Insurance Program at the
time of origination of the related
WMMSC Master Serviced Loan, the WMMSC
Master Servicer shall cause flood
insurance to be provided. The hazard
insurance coverage required by this Section
3.12 may be met with blanket policies
providing protection equivalent to
individual policies otherwise required. The
WMMSC Master Servicer shall be
responsible for paying any deductible
amount on any such blanket policy. The
WMMSC Master Servicer agrees to present, or
cause to be presented, on behalf of
and for the benefit of the Trust, claims
under the hazard insurance policy
respecting any WMMSC Master Serviced Loan,
and in this regard to take such
reasonable actions as shall be necessary to
permit recovery under such policy.
Section 3.13 Presentment of Claims and Collection of Proceeds.
The WF Master Servicer shall (to the extent provided in the
applicable Servicing Agreement) cause the
related WF Servicer to prepare and
present on behalf of the Trustee and the
Certificateholders all claims under the
Insurance Policies and take such actions
(including the negotiation, settlement,
compromise or enforcement of the insured's
claim) as shall be necessary to
realize recovery under such policies. Any
proceeds disbursed to the WF Master
Servicer (or disbursed to a WF Servicer and
remitted to the WF Master Servicer)
in respect of such policies, bonds or
contracts shall be promptly deposited in
the WF Master Servicer Custodial Account
upon receipt, except that any amounts
realized that are to be applied to the
repair or restoration of the related
Mortgaged Property as a condition precedent
to the presentation of claims on the
related Mortgage Loan to the insurer under
any applicable Insurance Policy need
not be so deposited (or remitted).
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
