EXHIBIT 4
==============================================================================
BANC OF AMERICA FUNDING CORPORATION,
as Depositor,
WELLS FARGO BANK, N.A.,
as Master Servicer,
WELLS FARGO BANK, N.A.,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
-----------------------
Mortgage Pass-Through Certificates
Series 2004-5
==============================================================================
<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 of the
Mortgage Loans..............
Section 2.03 Representations, Warranties and
Covenants of the Master
Servicer....................................................
Section 2.04 Representations and Warranties of
the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the
REMICs.......................
Section 2.06 Designation of Start-up
Day..................................
Section 2.07 REMIC Certificate Maturity
Date..............................
Section 2.08 Execution and Delivery of
Certificates.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage
Loans.......................
Section 3.02 Monitoring of
Servicers......................................
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance................
Section 3.04 Access to Certain
Documentation..............................
Section 3.05 Maintenance of Primary Mortgage
Insurance Policy; Claims.....
Section 3.06 Rights of the Depositor, the
Securities Administrator and
the Trustee in Respect of the Master Servicer...............
Section 3.07 Trustee to Act as Master
Servicer............................
Section 3.08 Servicer Custodial
Accounts..................................
Section 3.09 Collection of Mortgage Loan
Payments; Servicer Custodial
Account, Master Servicer Custodial Account and
Certificate Account.........................................
Section 3.10 Collection of Taxes, Assessments
and Similar Items;
Escrow Accounts.............................................
Section 3.11 Access to Certain Documentation
and Information Regarding
the Mortgage Loans..........................................
Section 3.12 Permitted Withdrawals from the
Certificate Account and
the Master Servicer Custodial Account.......................
Section 3.13 Maintenance of Hazard Insurance
and Other Insurance..........
Section 3.14 Presentment of Claims and
Collection of Proceeds.............
Section 3.15 Enforcement of Due-On-Sale
Clauses; Assumption Agreements....
Section 3.16 Realization Upon Defaulted
Mortgage Loans; REO Property......
Section 3.17 Trustee to Cooperate; Release of
Mortgage Files..............
Section 3.18 Documents, Records and Funds in
Possession of the Master
Servicer to be Held for the Trustee.........................
Section 3.19 Master Servicer
Compensation.................................
Section 3.20 Annual Statement as to
Compliance............................
Section 3.21 Annual Independent Public
Accountants' Servicing
Statement; Financial Statements.............................
Section 3.22
Advances.....................................................
Section 3.23 Reports to the Securities and
Exchange Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's
Certificate................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02 Priorities of
Distributions..................................
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......................................
Section 5.09 Determination of
LIBOR.......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02 Registration of Transfer and
Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or
Stolen Certificates............
Section 6.04 Persons Deemed
Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the
Depositor and the Master
Servicer....................................................
Section 7.02 Merger or Consolidation of the
Depositor or the Master
Servicer....................................................
Section 7.03 Limitation on Liability of the
Depositor, the Master
Servicer and Others.........................................
Section 7.04 Depositor and Master Servicer Not
to Resign..................
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default............................................
Section 8.02 Remedies of
Trustee..........................................
Section 8.03 Directions by Certificateholders
and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of
the Servicer and upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of
Successor.....................
Section 8.06 Notification to
Certificateholders...........................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities
Administrator...............
Section 9.02 Certain Matters Affecting the
Trustee and the Securities
Administrator...............................................
Section 9.03 Neither Trustee nor Securities
Administrator Liable for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee and Securities
Administrator May Own Certificates....
Section 9.05 Eligibility Requirements for
Trustee and the Securities
Administrator...............................................
Section 9.06 Resignation and Removal of Trustee
and the Securities
Administrator...............................................
Section 9.07 Successor Trustee or Securities
Administrator................
Section 9.08 Merger or Consolidation of Trustee
or Securities
Administrator...............................................
Section 9.09 Appointment of Co-Trustee or
Separate Trustee................
Section 9.10 Authenticating
Agents........................................
Section 9.11 Securities Administrator's Fees
and Expenses and
Trustee's 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...........................................
<PAGE>
EXHIBITS
Exhibit A-1-A-1 Form of Face of Class 1-A-1
Certificate
Exhibit A-1-A-2 Form of Face of Class 1-A-2
Certificate
Exhibit A-1-A-3 Form of Face of Class 1-A-3
Certificate
Exhibit A-1-A-4 Form of Face of Class 1-A-4
Certificate
Exhibit A-1-A-5 Form of Face of Class 1-A-5
Certificate
Exhibit A-1-A-6 Form of Face of Class 1-A-6
Certificate
Exhibit A-1-A-7 Form of Face of Class 1-A-7
Certificate
Exhibit A-1-A-8 Form of Face of Class 1-A-8
Certificate
Exhibit A-1-A-9 Form of Face of Class 1-A-9
Certificate
Exhibit A-1-A-10 Form of Face of Class 1-A-10
Certificate
Exhibit A-1-A-11 Form of Face of Class 1-A-11
Certificate
Exhibit A-1-A-12 Form of Face of Class 1-A-12
Certificate
Exhibit A-1-A-13 Form of Face of Class 1-A-13
Certificate
Exhibit A-1-A-14 Form of Face of Class 1-A-14
Certificate
Exhibit A-1-A-15 Form of Face of Class 1-A-15
Certificate
Exhibit A-1-A-16 Form of Face of Class 1-A-16
Certificate
Exhibit A-1-A-17 Form of Face of Class 1-A-17
Certificate
Exhibit A-1-A-18 Form of Face of Class 1-A-18
Certificate
Exhibit A-1-A-19 Form of Face of Class 1-A-19
Certificate
Exhibit A-1-A-20 Form of Face of Class 1-A-20
Certificate
Exhibit A-1-A-21 Form of Face of Class 1-A-21
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 30-IO Form of Face of
Class 30-IO Certificate
Exhibit 30-PO Form of Face of
Class 30-PO Certificate
Exhibit B-1 Form
of Face of Class B-1 Certificate
Exhibit B-2 Form
of Face of Class B-2 Certificate
Exhibit B-3 Form
of Face of Class B-3 Certificate
Exhibit B-4 Form
of Face of Class B-4 Certificate
Exhibit B-5 Form
of Face of Class B-5 Certificate
Exhibit B-6 Form
of Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates
Exhibit D
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 Sarbanes-Oxley Certification
Exhibit P
Form of Securities Administrator's Certification
Exhibit Q
[Reserved]
<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 master servicer
(together with its permitted successors and
assigns, the "Master Servicer"), WELLS
FARGO BANK, N.A., as securities
administrator (together with its permitted
successors and assigns, the
"Securities Administrator") and WACHOVIA
BANK, NATIONAL ASSOCIATION, as trustee
(together with its permitted successors and
assigns, the "Trustee").
W I T N E S S E T H T
H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the
Securities Administrator and the Trustee
agree as follows:
PRELIMINARY STATEMENT
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 two
real estate mortgage investment
conduits (each, a "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
and the Class 1-A-LR Certificate
shall be the "residual interest in the
Lower-Tier REMIC. The Certificates 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 (except that one
Certificate of each Class of Certificates
may be issued in any amount in excess
of the minimum denomination, but less than
the integral multiple in excess of
the minimum):
<PAGE>
<TABLE>
<CAPTION>
================================================================================
Integral
Initial Class
Pass-
Multiples
Certificate Balance or Through
Minimum in
Excess
Classes
Notional Amount
Rate
Denomination of
Minimum
--------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
Class 1-A-1
$27,500,000.00
5.250%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-2
$1,250,000.00(1) 5.500%
$1,000,000
$1
--------------------------------------------------------------------------------
Class 1-A-3
$140,751,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-4
$4,000,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-5
$2,200,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-6
$1,480,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-7
$1,150,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-8
$1,170,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-9
$2,061,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-10
$2,310,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-11
$2,804,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-12
$2,825,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-13
$1,250,000.00
5.250%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-14
$1,250,000.00
5.750%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-15
$2,500,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-16
$5,005,000.00
5.000%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-17
$455,000.00(2) 5.500%
$455,000
N/A
--------------------------------------------------------------------------------
Class 1-A-18
$10,307,000.00
5.500%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-19
$50,990,000.00
5.250%
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-20
$5,099,000.00
(3)
$1,000
$1
--------------------------------------------------------------------------------
Class 1-A-21
$5,099,000.00(4)
(5) $1,000,000
$1
--------------------------------------------------------------------------------
Class 1-A-R
$50.00
5.500%
$50
N/A
--------------------------------------------------------------------------------
Class 1-A-LR
$50.00
5.500%
$50
N/A
--------------------------------------------------------------------------------
Class 30-IO
$14,811,880.00(6) 5.500%
$1,000,000
$1
--------------------------------------------------------------------------------
Class 30-PO
$1,371,175.00
(7)
$25,000
$1
--------------------------------------------------------------------------------
Class B-1
$4,262,000.00
5.500%
$25,000
$1
--------------------------------------------------------------------------------
Class B-2
$1,924,000.00
5.500%
$25,000
$1
--------------------------------------------------------------------------------
Class B-3
$825,000.00
5.500%
$25,000
$1
--------------------------------------------------------------------------------
Class B-4
$825,000.00
5.500%
$25,000
$1
--------------------------------------------------------------------------------
Class B-5
$687,000.00
5.500%
$25,000
$1
--------------------------------------------------------------------------------
Class B-6
$413,374.00
5.500%
$25,000
$1
--------------------------------------------------------------------------------
</TABLE>
---------------
(1) The Class 1-A-2 Certificates are
Interest Only Certificates, have no Class
Certificate Balance and will not be
entitled to distributions in respect of
principal.
(2) The Class 1-A-17 Certificates are
Interest Only Certificates, have no Class
Certificate Balance and will not be
entitled to distributions in respect of
principal.
(3) During each LIBOR Based Interest
Accrual Period, interest will accrue on the
Class 1-A-20 Certificates at a per annum
rate equal to (i) 0.400% plus (ii)
LIBOR, subject to a minimum rate of 0.400%
and a maximum rate of 8.000%.
(4) The Class 1-A-21 Certificates are
Interest Only Certificates, have no Class
Certificate Balance and will not be
entitled to distributions in respect of
principal.
(5) During each LIBOR Based Interest
Accrual Period, interest will accrue on the
Class 1-A-21 Certificates at a per annum
rate equal to (i) 7.600% minus (ii)
LIBOR, subject to a minimum rate of 0.000%
and a maximum rate of 7.600%.
(6) The Class 3-IO Certificates are
Interest Only Certificates, have no Class
Certificate Balance and will not be
entitled to distributions in respect of
principal.
(7) The Class 30-PO Certificates are
Principal Only Certificates and will not be
entitled to distributions in respect of
interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
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 or Notional Amount, as
applicable.
Adjusted Pool Amount: With respect to any Distribution Date,
the
Cut-Off Date Pool Principal Balance of the
Mortgage Loans minus the sum of (i)
all amounts in respect of principal
received in respect of the Mortgage Loans
(including, without limitation, amounts
received as Monthly Payments, Periodic
Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates on such
Distribution Date and all prior
Distribution Dates and (ii) the principal
portion of all Realized Losses (other than
Debt Service Reductions) incurred on
the Mortgage Loans from the Cut-Off Date
through the end of the month preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date, the difference between
the Adjusted Pool Amount and the
Adjusted Pool Amount (PO Portion).
Adjusted Pool Amount (PO Portion): With respect to any
Distribution
Date, the sum of the amounts, calculated as
follows, with respect to all
Outstanding Mortgage Loans: the product of
(i) the PO Percentage for each such
Mortgage Loan and (ii) the remainder of (A)
the Cut-Off Date Principal Balance
of such Mortgage Loan minus (B) the sum of
(x) all amounts in respect of
principal received in respect of such
Mortgage Loan (including, without
limitation, amounts received as Monthly
Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and
Substitution Adjustment Amounts) and
distributed to Holders of the Certificates
on such Distribution Date and all
prior Distribution Dates and (y) the
principal portion of any Realized Loss
(other than a Debt Service Reduction)
incurred on such Mortgage Loan from the
Cut-Off Date through the end of the month
preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Ancillary Income: All 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: Servicing Agreement, dated December
29,
2004, by and between Bank of America
Funding Corporation, as depositor, and Bank
of America, National Association, 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
Commonwealth of Virginia, the State
of North Carolina, the State of New York,
the State of Minnesota, the State of
Ohio, the State of Missouri, the State of
Washington, the State of California,
the state in which the master servicing
offices of the 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).
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2004-5
that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Securities Administrator pursuant to
Section 3.09(c) 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 2004-5." The
Certificate Account shall be deemed to consist
of one sub-account referred to herein as
the Upper Tier Certificate Sub-Account.
Funds in the Certificate Account shall be
held in trust for the Holders of the
Certificates for the uses and purposes set
forth in this Agreement.
Certificate 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 Certificate Account.
Certificate Balance: With respect to any Certificate (other
than
Class 1-A-2, Class 1-A-17, Class 1-A-21 and
Class 30-IO Certificates) at any
date, the maximum dollar amount of
principal to which the Holder thereof is then
entitled hereunder, such amount being equal
to the product of the Percentage
Interest of such Certificate and the Class
Certificate Balance of the Class of
Certificates of which such Certificate is a
part. The Class 1-A-2, Class 1-A-17,
Class 1-A-21 and Class 30-IO Certificates
have no Certificate Balance.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable
to the Depository and selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a
Book-Entry
Certificate. With
respect
to any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer,
the 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
Servicers unless one of its Responsible
Officers has actual knowledge thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4, Class 1-A-5, Class
1-A-6, Class 1-A-7, Class 1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class
1-A-12, Class 1-A-13, Class 1-A-14,
Class 1-A-15, Class 1-A-16, Class 1-A-17,
Class 1-A-18, Class 1-A-19, Class
1-A-20, Class 1-A-21, Class 1-A-R, Class
1-A-LR, Class 30-IO, Class 30-PO, Class
B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6, as the case may
be.
Class 1-A-2 Notional Amount: As to any Distribution Date and
the
Class 1-A-2 Certificates, 4.5454545% of the
Class Certificate Balance of the
Class 1-A-1 Certificates.
Class 1-A-17 Notional Amount: As to any Distribution Date and
the
Class 1-A-17 Certificates, 9.0909091% of
the Class Certificate Balance of the
Class 1-A-16 Certificates.
Class 1-A-21 Notional Amount: As to any Distribution Date and
the
Class 1-A-21 Certificates, the Class
Certificate Balance of the Class 1-A-20
Certificates.
Class 30-IO Notional Amount: As to any Distribution Date and
the
Class 30-IO Certificates, the product of
(i) aggregate Stated Principal Balance
of the Premium Mortgage Loans on the Due
Date in the month preceding the month
of such Distribution and (ii) a fraction,
(a) the numerator of which is equal to
the weighted average of the Net Mortgage
Interest Rates of the Premium Mortgage
Loans (based on the Stated Principal
Balances of the Premium Mortgage Loans as
of the due date in the month preceding the
month of such Distribution Date)
minus 5.500% and (b) the denominator of
which is equal to 5.500%.
Class 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 (other than
the
Class 1-A-2, Class 1-A-17, Class 1-A-21 and
Class 30-IO Certificates) and any
date of determination, and subject to
Section 5.03(f), the Initial Class
Certificate Balance of such Class minus (A)
the sum of (i) all distributions of
principal made with respect thereto
(including in the case of a Class of Class B
Certificates, any principal otherwise
payable to such Class of Class B
Certificates used to pay any Class PO
Deferred Amounts) and (ii) all reductions
in Class Certificate Balance previously
allocated thereto pursuant to Section
5.03(b). The Class 1-A-2, Class 1-A-17,
Class 1-A-21 and Class 30-IO
Certificates are Interest-Only Certificates
and have no Class Certificate
Balance.
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 PO Deferred Amount: As to any Distribution Date and the
Class
30-PO Certificates, the sum of the amounts
by which the Certificate Balance of
such Class 30-PO Certificates will be
reduced on such Distribution Date or has
been reduced on prior Distribution Dates as
a result of Section 5.03(b) less the
sum of (a) the Class PO Recoveries with
respect to the Mortgage Loans for prior
Distribution Dates and (b) the amounts
distributed to such Class 30-PO
Certificates pursuant to Section
5.02(a)(iii) on prior Distribution Dates.
Class PO Recovery: As to any Distribution Date, the lesser of
(a)
the Class PO Deferred Amount for the Class
30-PO Certificates for such
Distribution Date and (b) an amount equal
to the sum as to each Mortgage Loan as
to which there has been a Recovery received
during the calendar month preceding
the month of such Distribution Date, of the
product of (x) the PO Percentage
with respect to such Mortgage Loan and (y)
the amount of the Recovery with
respect to such Mortgage Loan.
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.
CMMC: Chase Manhattan Mortgage Corporation.
CMMC Servicing Agreement: The Mortgage Loan Purchase, Warranties
and
Servicing Agreement, Whole Loan Series 2004
WL-OO, dated as of October 1, 2004,
by and between BANA and CMMC, as amended by
the Assignment, Assumption and
Recognition Agreement, dated December 29,
2004, among BANA, BAFC, Wachovia Bank,
National Association, and CMMC.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date
and
Servicer, an amount equal to the lesser of
(a) one-twelfth of 0.25% of the
aggregate Stated Principal Balance of the
Mortgage Loans serviced by such
Servicer as of the due date in the month
preceding the month of such
Distribution Date and (b) the aggregate
Prepayment Interest Shortfall for such
Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the
principal
office of the Trustee, which office at the
date of the execution of this
instrument is located at 401 South Tryon
Street, Charlotte, North Carolina,
28288-1179 Attention: Structured Finance
Trust Services, BAFC, Series 2004-5, or
at such other address as the Trustee may
designate from time to time by notice
to the Certificateholders, the Depositor,
the Securities Administrator and the
Master Servicer. With respect to the
Securities Administrator, the principal
corporate trust office of the Securities
Administrator at which at any
particular time its corporate trust
business with respect to this Agreement is
conducted, which office at the date of the
execution of this instrument is
located at 9062 Old Annapolis Road,
Columbia, Maryland 21045-1951, Attention:
Corporate Trust Services - BAFC 2004-5, and
for certificate transfer purposes is
located at Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479,
Attention: Corporate Trust Services - BAFC
2004-5, or at such other address as
the Securities Administrator may designate
from time to time by notice to the
Certificateholders, the Depositor, the
Trustee and the Master Servicer.
Corresponding Upper-Tier Class or Classes: As to the following
Uncertificated Lower-Tier Interests, the
Corresponding Upper-Tier Class or
Classes, as follows:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
Corresponding Upper-Tier Class or
Uncertificated
Upper-Tier Interest
Classes
----------------------------------
-------
------------------------------------------------------------------------------------------------
<S>
<C>
Class 1-A-L1 Interest
Class 1-A-1 and Class 1-A-2 Certificates
------------------------------------------------------------------------------------------------
Class
1-A-L3 Interest Class 1-A-3, Class 1-A-4, Class
1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-12,
Class 1-A-15, and Class 1-A-18 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L13 Interest
Class 1-A-13 and Class 1-A-14 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L16 Interest
Class 1-A-16 and Class 1-A-17 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L19 Interest
Class 1-A-19 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-L20 Interest
Class 1-A-20 and Class 1-A-21 Certificates
------------------------------------------------------------------------------------------------
Class 1-A-LUR Interest
Class 1-A-R Certificate
------------------------------------------------------------------------------------------------
Class 1-A-LIO Interest
Class 30-IO Certificates
------------------------------------------------------------------------------------------------
Class 1-A-LPO Interest
Class 30-PO Certificates
------------------------------------------------------------------------------------------------
Class B-L1 Interest
Class B-1 Certificates
------------------------------------------------------------------------------------------------
Class B-L2 Interest
Class B-2 Certificates
------------------------------------------------------------------------------------------------
Class B-L3 Interest
Class B-3 Certificates
------------------------------------------------------------------------------------------------
Class B-L4 Interest
Class B-4 Certificates
------------------------------------------------------------------------------------------------
Class B-L5 Interest
Class B-5 Certificates
------------------------------------------------------------------------------------------------
Class B-L6 Interest
Class B-6 Certificates
------------------------------------------------------------------------------------------------
</TABLE>
Custodian: Initially, the Trustee, and thereafter the Custodian,
if
any, hereafter appointed by the Trustee
pursuant to Section 9.12. The Custodian
may (but need not) be the Trustee or any
Person directly or indirectly
controlling or controlled by or under
common control of either of them. None of
the Master Servicer, 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 a Servicer,
procedures (including collection
procedures) that such Servicer customarily
employs and exercises in servicing and
administering mortgage loans for its own
account and which are in accordance with
accepted mortgage servicing practices
of prudent lending institutions servicing
mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties
are located.
Cut-Off Date: December 1, 2004.
Cut-Off Date Pool Principal Balance: The aggregate of the
Cut-Off
Date Principal Balances of the Mortgage
Loans which is $274,959,649.76.
Cut-Off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close
of business on the Cut-Off Date,
reduced by all installments of principal
due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the
Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan
over (ii) the amount of the monthly
payment of principal and/or interest
required to be paid with respect to such
Due Date by the Mortgagor as established by
a court of competent jurisdiction
(pursuant to an order which has become
final and nonappealable) as a result of a
proceeding initiated by or against the
related Mortgagor under the Bankruptcy
Code, as amended from time to time (11
U.S.C.); provided that no such excess
shall be considered a Debt Service
Reduction so long as (a) the Servicer 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
related Servicer in accordance with the
terms of such Mortgage Loan as in effect
on the Cut-Off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service
Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for
pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then
outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation
thereof established by a court of competent
jurisdiction (pursuant to an order which
has become final and nonappealable) as
a result of a proceeding initiated by or
against the related Mortgagor under the
Bankruptcy Code, as amended from time to
time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged
Property; provided that no such excess
shall be considered a Deficient Valuation
so long as (a) the related Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payments due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments
are being advanced by the related
Servicer in accordance with the terms of
such Mortgage Loan as in effect on the
Cut-Off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section
6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest,
as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of
the Book-Entry Certificates or any
successor thereto appointed in accordance
with this Agreement. The Depository
shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: With respect to any Distribution Date and
for
each Servicer, as defined in the applicable
Servicing Agreement.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date that
is less than 5.500% per annum.
Distribution Date: The 20th 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 from Wells
Fargo Bank 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
"F-1" in the case of Fitch 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 "AA-" in
the case of Fitch 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.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5 and
Class
B-6 Certificate.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums,
fire and hazard insurance premiums
and other payments as may be required to be
escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any
Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
related Servicer as Nonrecoverable
Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.12(a)(iv), exceeds
(i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
Date in the month in which such
Mortgage Loan became a Liquidated Mortgage
Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due
Date as to which interest was last paid
or for which a Periodic Advance was made
(and not reimbursed) up to the Due Date
applicable to the Distribution Date
immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates
will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated
by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
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).
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact
independent of the Depositor, the Trustee, the
Securities Administrator, the Master
Servicer and the Servicers, (ii) does not
have any direct financial interest or any
material indirect financial interest
in the Depositor, the Trustee, the
Securities Administrator, the Master Servicer
or the Servicers or in an affiliate of any
of them, and (iii) is not connected
with the Depositor, the Trustee, the
Securities Administrator, the Master
Servicer, or the Servicers as an officer,
employee, promoter, underwriter,
trustee, partner, director or person
performing similar functions.
Initial Class Certificate Balance: As to each Class of
Certificates
(other than the Class 1-A-2, Class 1-A-17,
Class 1-A-21 and Class 30-IO
Certificates), the Class Certificate
Balance set forth in the Preliminary
Statement. The Class 1-A-2, Class 1-A-17,
Class 1-A-21 and Class 30-IO
Certificates are Interest-Only Certificates
and have no Initial Class
Certificate Balance.
Initial Notional Amount: As to each Class of Interest-Only
Certificates, the Notional Amount set forth
in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any related insurance policy,
including all riders and
endorsements thereto in effect, including
any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the
Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Certificates (other than the Class
1-A-20 and Class 1-A-21 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. As to any Distribution Date and
the Class 1-A-20 and Class 1-A-21
Certificates, the period from and including
the 20th day of the calendar month
preceding the calendar month in which such
Distribution Date occurs and ending on the
19th day of the calendar month in
which such Distribution Date occurs.
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.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no
distributions of principal. The Class 1-A-2,
Class 1-A-17, Class 1-A-21 and Class 30-IO
Certificates are the only Classes of
Interest-Only Certificates.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations
for one-month U.S. Dollar deposits, as
determined by the Trustee in accordance
with Section 5.10.
LIBOR Business Day: Any Business Day on which banks are open
for
dealing in foreign currency and exchange in
London, England or the City of New
York.
LIBOR Certificates: Any of the Class 1-A-20 and Class 1-A-21
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO
Property) that was liquidated in the
calendar month preceding the month of such
Distribution Date and as to which the
related Servicer has certified (in
accordance with the related Servicing
Agreement) that it has received all
proceeds it expects to receive in connection
with the liquidation of such Mortgage Loan
including the final disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or
complete liquidation of defaulted
Mortgage Loans, whether through trustee's
sale, foreclosure sale or otherwise or
amounts received in connection with any
condemnation or partial release of a
Mortgaged Property and any other proceeds
received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed
as a percentage, the numerator of
which is the outstanding principal balance
of the related Mortgage Loan at the
date of determination and the denominator
of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage
Loans, such amounts as shall from time
to time be held in the Certificate Account
(other than Ancillary Income and
amounts held in respect of the Upper-Tier
Certificate Sub-Account), the
insurance policies, if any, relating to a
Mortgage Loan and property which
secured a Mortgage Loan and which has been
acquired by foreclosure or deed in
lieu of foreclosure.
Master Servicer: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor
master servicer is appointed
hereunder, such successor, as master
servicer.
Master Servicer Custodial Account: The Eligible Account created
and
maintained by the Master Servicer pursuant
to Section 3.09(b) in the name of the
Master Servicer for the benefit of the
Certificateholders and designated "Wells
Fargo Bank, N.A., as Master Servicer, in
trust for the registered holders of
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series
2004-5."
Master Servicer Indemnified Parties: As defined in Section
3.23(c).
Master Servicer's Certificate: The monthly report required by
Section 4.01.
Master Servicing Officer: With respect to the Master Servicer,
any
officer of the Master Servicer involved in,
or responsible for, the
administration and master servicing of the
Mortgage Loans whose name appears on
a list of servicing officers furnished to
the Securities Administrator by the
Master Servicer, as such list may from time
to time be amended.
Master Servicing Transfer Costs: All reasonable costs and
expenses
incurred by the Trustee in connection with
the transfer of master servicing from
a predecessor master servicer, including,
without limitation, any costs or
expenses associated with the complete
transfer of all master servicing data and
the completion, correction or manipulation
of such master servicing data as may
be required by the Trustee to correct any
errors or insufficiencies in the
master servicing data or otherwise to
enable the Trustee to master service the
Mortgage Loans properly and
effectively.
MERS: As defined in Section 2.01(b)(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.
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 in accordance with the terms of the
related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of December 29, 2004,
between Bank of America, National
Association, as seller, and the Depositor,
as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the Master Servicer to
reflect the addition of Substitute
Mortgage Loans and the deletion of
Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred
to the Trustee as part of the Trust
Estate and from time to time subject to
this Agreement, attached hereto as
Exhibit D, 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; (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) a code indicating the initial
Servicer; (xvi) the Appraised Value and
(xvii) the closing date of the Mortgage
Loan. With respect to the Mortgage Loans
in the aggregate, the Mortgage Loan
Schedule shall set forth the following
information, as of the Cut-Off Date: (i)
the number of Mortgage Loans; (ii) the
current aggregate outstanding principal
balance of the Mortgage Loans; (iii) the
weighted average Mortgage Interest Rate of
the Mortgage Loans; and (iv) the
weighted average months to maturity of the
Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as
from time to time are held as a part
of the Trust Estate (including any
Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being
identified in the Mortgage Loan
Schedule.
Mortgage
Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of
a Mortgagor under a Mortgage Loan,
together with all riders thereto and
amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or
residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
National City Mortgage: National City Mortgage Co.
National City Mortgage Servicing Agreement: The Master Seller's
Warranties and Servicing Agreement, dated
as of September 1, 2003, by and among
Banc of America Mortgage Capital
Corporation (and Bank of America, National
Association, as successor thereto) and
National City Mortgage, as amended by (i)
Amendment No. 1 to Master Seller's
Warranties and Servicing Agreement, dated as
of July 1, 2004, by and among Banc of
America Mortgage Capital Corporation, Bank
of America, National Association and
National City Mortgage, (ii) the Master
Assignment, Assumption and Recognition
Agreement, dated as of July 1, 2004, by
and among Banc of America Mortgage Capital
Corporation, National City Mortgage,
Bank of America, National Association and
Wachovia Bank, National Association,
(iii) Amendment No. 2, dated as of October
1, 2004, by and between National City
Mortgage and Bank of America, National
Association and (iv) the Assignment
Assumption and Recognition Agreement, dated
as of December 29, 2004, by and
among Bank of America, National
Association, Banc of America Funding
Corporation, Wachovia Bank, National
Association and National City Mortgage.
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
sum of the Servicing Fee Rate and the
Securities Administrator Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator
of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such
Discount Mortgage Loan and the denominator
of which is 5.500% for each Discount
Mortgage Loan. As to any Mortgage Loan that
is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date, the sum of
(i)
the sum of the applicable Non-PO Percentage
of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan
on the related Due Date, (b) the
Stated Principal Balance, as of the date of
repurchase, of each Mortgage Loan
that was repurchased by the Seller pursuant
to the Mortgage Loan Purchase
Agreement or a Servicer pursuant to the
applicable Servicing Agreement as of
such Distribution Date, (c) any
Substitution Adjustment Amount in connection
with a Defective Mortgage Loan received
with respect to such Distribution Date,
(d) any Liquidation Proceeds allocable to
recoveries of principal of Mortgage
Loans that are not yet Liquidated Mortgage
Loans received by a Servicer during
the calendar month preceding the month of
such Distribution Date, (e) with
respect to each Mortgage Loan that became a
Liquidated Mortgage Loan during the
calendar month preceding the month of such
Distribution Date, the amount of
Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received
by a Servicer with respect to such Mortgage
Loan during the calendar month
preceding the month of such Distribution
Date and (f) all Principal Prepayments
on the Mortgage Loans received by a
Servicer during the calendar month preceding
the month of such Distribution Date; and
(ii) the Non-PO Recovery for such
Distribution Date.
Non-PO Recovery: As to any Distribution Date, the amount of all
Recoveries received with respect to the
Mortgage Loans during the calendar month
preceding the month of such Distribution
Date less the Class PO Recovery with
respect to the Mortgage Loans for such
Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date,
the
amount, if any, by which the aggregate
Prepayment Interest Shortfalls exceeds
the 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 related Servicer, will
not or, in the case of a proposed Advance,
would not be ultimately recoverable
from the related Mortgagor, related
Liquidation Proceeds, or other recoveries in
respect of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Notional Amount: With respect to (a) the Class 1-A-2
Certificates
and any date of determination, the Class
1-A-2 Notional Amount, (b) the Class
1-A-17 Certificates and any date of
determination, the Class 1-A-17 Notional
Amount, (c) the Class 1-A-21 Certificates
and any date of determination, the
Class 1-A-21 Notional Amount and (d) the
Class 30-IO Certificates and any date
of determination, the Class 30-IO Notional
Amount.
Offered Certificates: The Senior, Class B-1, Class B-2 and Class
B-3
Certificates.
Officer's
Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board,
President or a Vice President and by the
Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant
Secretaries, or any other duly authorized
officer of the Depositor or the Master
Servicer, as the case may be, and delivered
to the Trustee or the Securities
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the
Trustee, or acceptable to the
Securities Administrator if such opinion is
delivered to the Securities
Administrator, who may be counsel for the
Depositor or the Master Servicer,
except that any opinion of counsel relating
to the qualification of the Trust
Estate as two separate REMICs or compliance
with the REMIC Provisions must be an
opinion of Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the
corresponding percentage described
below, as of the Closing Date:
Class B-1
1.71%
Class B-2
1.01%
Class B-3
0.70%
Class B-4
0.40%
Class B-5
0.15%
Class B-6
0.00%
Original Subordinate Certificate Balance: $8,936,374.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal
Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage
Loan prior to such Due Date and which
was not purchased from the Trust prior to
such Due Date pursuant to Section
2.02, Section 2.04 or Section 3.16(f).
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.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance
of such Certificate (or the initial
notional amount for the Class 1-A-2, Class
1-A-17, Class 1-A-21 and Class 30-IO
Certificates) by the Initial Class
Certificate Balance or Initial Notional
Amount, as applicable, of the Class of
which such Certificate is a part.
Periodic Advance: With respect to each Servicer, shall have the
meaning given to term "Monthly Advance" in
the applicable Servicing Agreement.
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 "F-1" by Fitch 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 "F-1" by Fitch 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 "F-1" by Fitch
and "A-1+"
by S&P;
(v) investments in money market funds (including funds of the
Trustee,
the Securities Administrator or their affiliates, or funds for
which an
affiliate of the Trustee or the Securities Administrator acts
as
advisor,
as well as funds for which the Trustee and its affiliates or
the
Securities
Administrator and its affiliates may receive compensation)
rated
either "AAA" by Fitch (if rated by Fitch) and "AAAm G" by S&P
or
otherwise
approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating
Agency and, as evidenced by an Opinion of Counsel obtained by
the
Master
Servicer and addressed to the Depositor and the Securities
Administrator, will not affect the qualification of the Trust
Estate as
two
separate REMICs;
provided, however, that no instrument shall
be a Permitted Investment if it
represents either (a) the right to receive
only interest payments with respect
to the underlying debt instrument or (b)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision
thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a foreign government,
international organization or any agency or
instrumentality of either of the
foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by
Section 511 of the Code on unrelated
business taxable income) (except certain
farmers' cooperatives described in Code
Section 521), (iv) rural electric and
telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with
respect to whom the income on a
Residual Certificate is allocable to a
foreign permanent establishment or fixed
base, within the meaning of an applicable
income tax treaty, of such Person or
any other Person, and (vi) any other Person
so designated by the Master Servicer
based on an Opinion of Counsel to the
effect that any transfer to such Person
may cause the Trust or any other Holder of
a Residual Certificate to incur tax
liability that would not be imposed other
than on account of such transfer. The
terms "United States," "State" and
"international organization" shall have the
meanings set forth in Code Section 7701 or
successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Plan: As defined in Section 6.02(e).
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan.
As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date, the sum of (i)
the
sum of the applicable PO Percentage of (a)
the principal portion of each Monthly
Payment due on each Mortgage Loan on the
related Due Date, (b) the Stated
Principal Balance, as of the date of
repurchase, of each Mortgage Loan that was
repurchased by the Depositor pursuant to
this Agreement, the Seller pursuant to
the Mortgage Loan Purchase Agreement or a
Servicer pursuant to the applicable
Servicing Agreement as of such Distribution
Date or the Master Servicer pursuant
to Section 10.01 hereof, (c) any
Substitution Adjustment Amount in connection
with any Defective Mortgage Loan received
during the calendar month preceding
the month of such Distribution Date, (d)
any Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans
that are not yet Liquidated Mortgage
Loans received by a Servicer during the
calendar month preceding the month of
such Distribution Date, (e) with respect to
each Mortgage Loan that became a
Liquidated Mortgage Loan during the
calendar month preceding the month of such
Distribution Date, the amount of
Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received
by a Servicer with respect to such
Mortgage Loan during the calendar month
preceding the month of such Distribution
Date with respect to such Mortgage Loan and
(f) all Principal Prepayments
received on the Mortgage Loans received by
a Servicer during the calendar month
preceding the month of such Distribution
Date; and (ii) the Class PO Recovery
for such Distribution Date.
Pool Distribution Amount: As to any Distribution Date, the excess
of
(a) the sum of (i) the aggregate of (A) the
interest portion of any Monthly
Payment on a Mortgage Loan and the
principal portion of any Monthly Payment on a
Mortgage Loan 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
Periodic Advances made by a Servicer (or
the Master Servicer or the Trustee, as
applicable) and payments of Compensating
Interest made by the applicable
Servicer and such Distribution Date
deposited to the Master Servicer Custodial
Account pursuant to Section 3.09(d)(vi);
(ii) all Liquidation Proceeds received
on the Mortgage Loans during the preceding
calendar month and deposited to the
Master Servicer Custodial Account pursuant
to Section 3.09(d)(iii); (iii) all
Principal Prepayments received on the
Mortgage Loans during the month preceding
the month of such Distribution Date and
deposited in the Master Servicer
Custodial Account pursuant to Section
3.09(d)(i); (iv) in connection with
Defective Mortgage Loans, as applicable,
the aggregate of the Repurchase Prices
and Substitution Adjustment Amounts
received during the preceding month of such
Distribution Date and deposited into the
Master Servicer Custodial Account
pursuant to Section 3.09(d)(vii); (v) any
other amounts in the Master Servicer
Custodial Account deposited therein
pursuant to Section 3.09(d)(iv), (v) and
(viii) in respect of such Distribution
Date; (vi) any Reimbursement Amount
required to be included pursuant to Section
5.02(a); and (vii) any Non-PO
Recovery with respect to such Distribution
Date over (b) any (i) amounts
permitted to be withdrawn from the Master
Servicer Custodial Account pursuant to
clauses (i) through (vii), inclusive, of
Section 3.12(a).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balances of all
Mortgage Loans that were Outstanding
Mortgage Loans at the close of business on
the Due Date in the month preceding
the month in which such Distribution Date
occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date, the sum for each
Mortgage Loan of the product of (a) the
Non-PO Percentage of such Mortgage Loan and
(b) the Stated Principal Balance of
such Mortgage Loan that was an Outstanding
Mortgage Loan immediately following
the Due Date in the month preceding the
month in which such Distribution Date
occurs.
Premium Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date that
is greater than or equal to 5.500% per
annum.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal
Prepayment received during the calendar
month preceding such Distribution Date, the
amount, if any, by which one month's
interest at the related Mortgage Interest
Rate (net of the Servicing Fee Rate)
on such Principal Prepayment exceeds the
amount of interest paid in connection
with such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary
mortgage
guaranty insurance or any replacement
policy therefor with respect to any
Mortgage Loan, in each case issued by an
insurer acceptable to FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled
to
distributions of principal, but to no
distributions of interest. The Class 30-PO
Certificates are the only Principal Only
Certificates.
Principal Prepayment: Any payment or other recovery of principal
on
a Mortgage Loan (other than Liquidation
Proceeds) which is received in advance
of its scheduled Due Date and is not
accompanied by an amount of interest
representing scheduled interest due on any
date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Priority Amount: As to any Distribution Date, the lesser of (i)
the
Class Certificate Balance of the Class
1-A-1 Certificates and (ii) the product
of (a) the Non-PO Principal Amount, (b) the
Shift Percentage and (c) the
Priority Percentage.
Priority Percentage: As to any Distribution Date, the
percentage
equivalent (carried to six places rounded
up) of a fraction the numerator of
which is the Class Certificate Balance of
the Class 1-A-1 Certificates
immediately prior to such date and the
denominator of which is the Pool Stated
Principal Balance (Non-PO Portion).
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 Amount
allocable to such Class, equal to the
product of the Subordinate Principal
Distribution Amount for such Distribution
Date and a fraction, the numerator of which
is the related Class Certificate
Balance thereof and the denominator of
which is the aggregate Class Certificate
Balance of the Subordinate Certificates
that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be
0%.
Rate Determination Date: As to any Class of LIBOR Certificates,
the
second LIBOR Business Day prior to the
beginning of the applicable Interest
Accrual Period for such Class and such
Distribution Date.
Rating Agency: Each of Fitch and S&P. If either such
organization or
a successor is no longer in existence,
"Rating Agency" shall be such nationally
recognized statistical rating organization,
or other comparable Person, as is
designated by the Depositor, notice of
which designation shall be given to the
Trustee, the Master Servicer and the
Securities Administrator. References herein
to a given rating or rating category of a
Rating Agency shall mean such rating
category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation,
equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as
of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest
Rate from the Due Date as to which
interest was last paid or advanced (and not
reimbursed) to Certificateholders up
to the Due Date in the month in which
Liquidation Proceeds are required to be
distributed on the Stated Principal Balance
of such Liquidated Mortgage Loan
from time to time, minus (iii) the
Liquidation Proceeds, if any, received during
the month in which such liquidation
occurred, to the extent applied as
recoveries of interest at the Net Mortgage
Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to
each Mortgage Loan that has become the
subject of a Deficient Valuation, if the
principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and
the principal balance of the Mortgage Loan
as reduced by the Deficient
Valuation. With respect to each Mortgage
Loan that has become the subject of a
Debt Service Reduction and any Distribution
Date, the amount, if any, by which
the principal portion of the related
Monthly Payment has been reduced.
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: As to any Distribution Date, the sum of all amounts
received during the calendar month
preceding the month of such Distribution Date
on each Mortgage Loan subsequent to such
Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
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.
REO Property: A Mortgaged Property acquired by a Servicer on
behalf
of the Trust through foreclosure or
deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased
on
any date pursuant to Section 2.02, an
amount equal to (a) in the case of the
Seller, the sum of (i) the unpaid principal
balance thereof and (ii) the unpaid
accrued interest thereon at the applicable
Mortgage Interest Rate from the Due
Date to which interest was last paid by the
Mortgagor to the first day of the
month following the month in which such
Mortgage Loan became eligible to be
repurchased and (b) in the case of a
Servicer, the sum of (i) the Stated
Principal Balance of the Mortgage Loan,
(ii) interest on such Stated Principal
Balance at the Mortgage Interest Rate from
the date on which interest has last
been paid and distributed through the last
day of the month in which such
repurchase takes place and (iii) any costs
and damages incurred by the Trust in
connection with any violation by such
repurchased Mortgage Loan of any predatory
or abusive lending law, less (x) amounts
received or advanced in respect of such
repurchased Mortgage Loan which are being
held in the applicable Servicer
Custodial Account for distribution in the
month of repurchase and (y) if such
Servicer is servicing such Mortgage Loan
under the related Servicing Agreement,
the Servicing Fee Rate for such Mortgage
Loan.
Request for Release: The Request for Release submitted by a
Servicer
to the Trustee or the Custodian on behalf
of the Trustee, substantially in the
form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be
maintained from time to time under this
Agreement in respect of such Mortgage
Loan.
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, an
amount
equal to one-twelfth of the Securities
Administrator Fee Rate multiplied by the
aggregate Stated Principal Balance of the
Mortgage Loans as of the close of
business on the Due Date in the month
preceding the month in which such
Distribution Date occurs.
Securities Administrator Fee Rate: With respect to each
Mortgage
Loan, 0.0250% per annum.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest,
as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6,
Class 1-A-7, Class 1-A-8, Class 1-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-12,
Class 1-A-13, Class 1-A-14, Class
1-A-15, Class 1-A-16, Class 1-A-17, Class
1-A-18, Class 1-A-19, Class 1-A-20,
Class 1-A-21, Class 1-A-R, Class 1-A-LR,
Class 30-IO and Class 30-PO
Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the
Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried to six places rounded
up, obtained by dividing (i) the
aggregate Class Certificate Balance of the
Senior Certificates immediately prior
to such Distribution Date, by (ii) the Pool
Stated Principal Balance (Non-PO
Portion) for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during
the
five years beginning on the first
Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date
occurring on or after the fifth anniversary
of the first Distribution Date will, except
as provided herein, be as follows:
for any Distribution Date in the first year
thereafter, the Senior Percentage
plus 70% of the Subordinate Percentage for
such Distribution Date; for any
Distribution Date in the second year
thereafter, the Senior Percentage plus 60%
of the Subordinate Percentage for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage plus 40% of the
Subordinate Percentage for such
Distribution Date; for any Distribution Date in
the fourth year thereafter, the Senior
Percentage plus 20% of the Subordinate
Percentage for such Distribution Date; and
for any Distribution Date in the
fifth or later years thereafter, the Senior
Percentage for such Distribution
Date (unless on any of the foregoing
Distribution Dates the Senior Percentage
exceeds the initial Senior Percentage, in
which case the Senior Prepayment
Percentage for such Distribution Date will
once again equal 100%).
Notwithstanding the foregoing, no decrease
in the Senior Prepayment Percentage
will occur unless both of the Senior Step
Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date,
the sum of (i) the Senior Percentage of the
applicable Non-PO Percentage of the
amounts described in clauses(i) (a) through
(d) of the definition of "Non-PO
Principal Amount" for such Distribution
Date and (ii) the Senior Prepayment
Percentage of (1) the applicable Non-PO
Percentage of the amounts described in
clauses (i)(e) and (f) and (2) the amount
described in clause (ii) of the
definition of "Non-PO Principal Amount" for
such Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment
Percentage applies, (i) the outstanding
principal balance of all Mortgage Loans
(including, for this purpose, any
Mortgage Loans in foreclosure, any REO
Property and any Mortgage Loan for which
the Mortgagor has filed for bankruptcy
after the Closing Date) delinquent 60
days or more (averaged over the preceding
six month period), as a percentage of
the aggregate Class Certificate Balance of
the Subordinate Certificates, is not
equal to or greater than 50% or (ii)
cumulative Realized Losses with respect to
the Mortgage Loans as of the applicable
Distribution Date do not exceed the
percentages of the Original Subordinate
Certificate Balance set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 20010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
Servicer: Any of BANA, National City Mortgage, SunTrust,
Washington
Mutual, CMMC and Wells Fargo Bank, each in
their capacity as servicer or
originator of the Mortgage Loans, or any
successor servicer appointed as herein
provided.
Servicer Advance Date: As to any Distribution Date, the Business
Day
preceding the Servicer Remittance Date.
Servicer Custodial Accounts: The separate accounts created and
maintained by each of the Servicers
pursuant to the applicable Servicing
Agreement.
Servicer Remittance Date: With respect to each Servicer, shall
have
the meaning given to the term "Remittance
Date" in the applicable Servicing
Agreement.
Servicing Advance: With respect to each Servicer, shall have
the
meaning given to the term "Servicing
Advances" in the applicable Servicing
Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement, the
National City Mortgage Servicing Agreement,
the SunTrust Servicing Agreement,
WAMU Servicing Agreement, the CMMC
Servicing Agreement and the Wells Fargo Bank
Servicing Agreement.
Servicing Fee: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as
defined
in the applicable Servicing Agreement.
Servicing Officer: With respect to each Servicer, as defined in
the
related Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of
the
Master Servicer or the Trustee, as
applicable, related to any termination of a
Servicer, appointment of a successor
Servicer or the transfer and assumption of
servicing by the Master Servicer or the
Trustee, as applicable, with respect to
any Servicing Agreement (including, without
limitation, (i) all legal costs and
expenses and all due diligence costs and
expenses associated with an evaluation
of the potential termination of the
Servicer as a result of an event of default
by such Servicer and (ii) any costs or
expenses associated with the complete
transfer of all servicing data and the
completion, correction or manipulation of
such servicing data as may be required by
the Master Servicer or the Trustee, as
applicable, to correct any errors or
insufficiencies in the servicing data or
otherwise to enable the Master Servicer or
the Trustee, as applicable, to
service the Mortgage Loans properly and
effectively).
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In
Shift Percentage
------------------------------
----------------
January 2005 through December 2009
0%
January 2010 through December 2010
30%
January 2011 through December 2011
40%
January 2012 through December 2012
60%
January 2013 through December 2013
80%
January 2014 and thereafter
100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage
Loan as of such date as specified in
the amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason of any
moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments
and Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date
and irrespective of any delinquency in
payment by the related Mortgagor, and
after giving effect to any Deficient
Valuation.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date, 100% minus
the
Senior Percentage for such Distribution
Date.
Subordinate Prepayment Percentage: As to any Distribution Date,
100%
minus the Senior Prepayment Percentage for
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the
sum of (i) the Subordinate Percentage
of the applicable Non-PO Percentage of the
amounts described in clauses (i)(a)
through (d) of the definition of "Non-PO
Principal Amount" for such Distribution
Date and (ii) the Subordinate Prepayment
Percentage of the applicable Non-PO
Percentage of the amounts described in
clauses (i)(e) and (f) and (2) the amount
described in clause (ii) of the definition
of "Non-PO Principal Amount" for such
Distribution Date.
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 Deleted Mortgage Loan;
(iv) have a remaining term to maturity not
greater than (and not more than one
year less than) that of the Defective
Mortgage Loan; and (v) comply with each
Mortgage Loan representation and warranty
set forth in the Mortgage Loan
Purchase Agreement and the applicable
Servicing Agreement and this Agreement.
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.
SunTrust: SunTrust Mortgage, Inc.
SunTrust Servicing Agreement: The Flow Sale and Servicing
Agreement,
dated as of February 1, 2004, between Banc
of America Mortgage Capital
Corporation (and Bank of America, National
Association, as successor thereto)
and SunTrust, as amended by (i) Amendment
No. 1 to Flow Sale and Servicing
Agreement, dated as of June 1, 2004, by and
between Banc of America Mortgage
Capital Corporation and SunTrust, (ii) the
Master Assignment, Assumption and
Recognition Agreement, dated September 1,
2004, by and among Banc of America
Mortgage Capital Corporation, SunTrust,
Bank of America, National Association
and Wachovia Bank, National Association,
(iii) Amendment No. 2, dated as of
November 1, 2004, by and between Banc of
America Mortgage Capital Corporation
and SunTrust and (iv) the Assignment,
Assumption and Recognition Agreement,
dated December 29, 2004, among Bank of
America, National Association, Banc of
America Funding Corporation, Wachovia Bank,
National Association and SunTrust
Mortgage, Inc.
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 2004-5 Trust."
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the
Mortgage Loans, such assets as shall from
time to time be identified as deposited in
the Servicer Custodial Accounts in
accordance with the Servicing Agreements or
the Certificate Account, in
accordance with this Agreement, REO
Property, the Primary Mortgage Insurance
Policies and any other Required Insurance
Policy.
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 two
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 and
the Mortgage Loan Purchase Agreement
(including any security interest created
thereby) and (v) the Servicer Custodial
Accounts, the Master Servicer Custodial
Account 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 Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-A-L1 Interest, Class 1-A-L3
Interest, Class 1-A-L13 Interest, Class
1-A-L16 Interest, Class 1-A-L19 Interest,
Class 1-A-L20 Interest, Class 1-A-LUR
Interest, Class 1-A-LIO Interest, Class
1-A-LPO Interest, Class B-L1 Interest,
Class B-L2 Interest, Class B-L3 Interest,
Class B-L4 Interest, Class B-L5
Interest and Class B-L6 Interest are
Uncertificated Lower-Tier Interests.
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(g).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be
deemed held in the Upper-Tier Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the
case of a partnership, Treasury
Regulations are adopted that provide
otherwise) created or organized in or under
the laws of the United States, any state
thereof or the District of Columbia,
including an entity treated as a
corporation or partnership for federal income
tax purposes, an estate whose income is
subject to United States federal income
tax regardless of its source, or a trust if
a court within the United States is
able to exercise primary supervision over
the administration of such trust, and
one or more such U.S. Persons have the
authority to control all substantial
decisions of such trust (or, to the extent
provided in applicable Treasury
Regulations, certain trusts in existence on
August 20, 1996 which are eligible
to elect to be treated as U.S.
Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. As of any date of
determination, (a) 1% of the Voting Rights
shall be allocated collectively to
the Holders of the Residual Certificates,
(b) 1% of the Voting Rights shall be
allocated to the Holders of the Class 1-A-2
Certificates, (c) 1% of the Voting
Rights shall be allocated to the Holders of
the Class 1-A-17 Certificates, (d)
1% of the Voting Rights shall be allocated
to the Holders of the Class 1-A-21
Certificates, (e) 1% of the Voting Rights
shall be allocated to the Holders of
the Class 30-IO Certificates and (f) the
remaining Voting Rights shall be
allocated among Holders of the remaining
Classes of Certificates in proportion
to the Certificate Balances of their
respective Certificates on such date.
WAMU Sellers: Washington Mutual Bank, FA and Washington Mutual
Bank,
in their capacity as sellers under the
Washington Mutual Sale Agreement.
Washington Mutual Sale Agreement: The Amended and Restated
Mortgage
Loan Purchase and Sale Agreement, dated as
of July 1, 2003, by and between
Washington Mutual and Banc of America
Mortgage Capital Corporation , as amended
from time to time.
WAMU Servicing Agreement: The (i) Mortgage Loan Purchase and
Sale
Agreement (Amended and Restated), dated as
of July 1, 2003, among the WAMU
Sellers and Bank of America, National
Association (as successor in interest to
Banc of America Mortgage Capital
Corporation), as amended by (a) the July 2004
Amendment and (b) the Master Assignment,
Assumption and Recognition Agreement,
dated as of July 1, 2004, by and among Banc
of America Mortgage Capital
Corporation, Bank of America, National
Association, and the WAMU Sellers and
(ii) the Servicing Agreement (Amended and
Restated), dated as of July 1, 2003 by
and between Bank of America, National
Association and Washington Mutual Bank,
FA, as amended from time to time.
Wells Fargo Bank: Wells Fargo Bank, N.A., in its capacity as
Servicer under the Wells Fargo Bank
Servicing Agreement.
Wells Fargo Bank Servicing Agreement: The (a) Master Seller's
Warranties and Servicing Agreement, dated
as of January 1, 2003, by and between
Wells Fargo Bank (successor by merger to
Wells Fargo Home Mortgage, Inc.) and
Banc of America Mortgage Capital
Corporation (as amended by Amendment No. 1,
dated as of April 1, 2003, Amendment No. 2,
dated as of May 1, 2003, Amendment
No. 3, dated as of July 1, 2003, Amendment
No. 4, dated as of October 1, 2003
and Amendment No. 5 dated as of May 10,
2004), (b) the Assignment and Conveyance
Agreement, dated as of November 23, 2004,
between Banc of America Mortgage
Capital Corporation and the Wells Fargo
Bank, N.A., (c) the Master Assignment,
Assumption and Recognition Agreement, dated
as of July 1, 2004, among Banc of
America Mortgage Capital Corporation, Wells
Fargo Bank, N.A., Bank of America,
National Association and Wachovia Bank,
National Association and (d) the
Assignment, Assumption and Recognition
Agreement, dated as of December 29, 2004,
among Bank of America, National
Association, Banc of America Funding
Corporation, Wachovia Bank, National
Association and Wells Fargo Bank, N.A.
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 the Servicing Agreements, and
the Depositor's rights under the BANA
Servicing Agreement. The foregoing sale,
transfer, assignment and set over does not
and is not intended to result in a
creation of an assumption by the Trustee of
any obligation of the Depositor or
any other Person in connection with the
Mortgage Loans or any agreement or
instrument relating thereto, except as
specifically set forth herein. It is
agreed and understood by the parties hereto
that it is not intended that any
mortgage loan be included in the Trust that
is a "High-Cost Home Loan" as
defined in either (i) the New Jersey Home
Ownership Act effective November 27,
2003, (ii) the New Mexico Home Loan
Protection Act effective January 1, 2004 or
(iii) the Massachusetts Predatory Home Loan
Practices Act effective November 7,
2004.
(b) In connection with such transfer and assignment, the
Depositor
has delivered or caused to be delivered to
the Trustee, for the benefit of the
Certificateholders, the following documents
or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wachovia Bank,
National
Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-5,
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 from Wells Fargo Bank, the
original
recorded
Mortgage with evidence of a recording thereon, or if any such
Mortgage
has not been returned from the applicable recording office or
has
been lost,
or if such public recording office retains the original
recorded
Mortgage, a copy of such Mortgage certified by the applicable
Servicer
(which may be part of a blanket certification) as being a true
and
correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a
duly
executed
Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee
for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-5" (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
from Wells Fargo Bank, originals of all interim recorded
assignments of such mortgage or a copy of such interim
assignment
certified
by the applicable Servicer (which may be part of a blanket
certification) as being a true and complete copy of the original
recorded
intervening assignments of Mortgage (each such assignment, when
duly and
validly
completed, to be in recordable form and sufficient to effect
the
assignment
of and transfer to the assignee thereof, under the Mortgage to
which the
assignment relates); provided that, if the related Mortgage has
not been
returned from the applicable public recording office, such
Assignment
of Mortgage may exclude the information to be provided by the
recording
office; and provided, further, if the related Mortgage has been
recorded
in the name of Mortgage Electronic Registration Systems, Inc.
("MERS")
or its designee, no Assignment of Mortgage in favor of the
Trustee
will be required to be prepared or delivered and instead, the
Master
Servicer shall enforce the obligations of the applicable
Servicer
to take
all actions as are necessary to cause the Trust to be shown as
the
owner of
the related Mortgage Loan on the records of MERS for purposes
of
the system
of recording transfers of beneficial ownership of mortgages
maintained
by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by
the
Seller
from Wells Fargo Bank, 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 Co-op Shares (other than
with
respect to
any Mortgage Loan secured by Co-op Shares purchased by the
Seller
from Wells Fargo Bank), the originals of the following documents
or
instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing
Date, with respect to item (iii), if an
Assignment of Mortgage is required to be
recorded as set forth below, the
Depositor has delivered to the Trustee a
copy of such Assignment of Mortgage in
blank rather than in the name of the
Trustee and has caused the applicable
Servicer to retain the completed Assignment
of Mortgage for recording as
described below, unless such Mortgage has
been recorded in the name of MERS or
its designee. In addition, if the Depositor
is unable to deliver or cause the
delivery of any original Mortgage Note due
to the loss of such original Mortgage
Note, the Depositor may deliver a copy of
such Mortgage Note, together with a
lost note affidavit, and shall thereby be
deemed to have satisfied the document
delivery requirements of this Section
2.01(b). As set forth on Exhibit 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.
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 has
not been delivered to either the related
Servicer, the Seller or the Depositor
by the applicable title insurer, if any, in
the case of clause (v) above, the
Depositor shall promptly deliver or cause
to be delivered to the Trustee or the
Custodian on behalf of the Trustee, in the
case of clause (ii), (iii) or (iv)
above, such Mortgage, such interim
assignment or such assumption, modification,
consolidation or extension agreement, as
the case may be, with evidence of
recording indicated thereon upon receipt
thereof from the public recording
office, but in no event shall any such
delivery of any such documents or
instruments be made later than one year
following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv)
above, there has been a continuing delay
at the applicable recording office or, in
the case of clause (v), there has been
a continuing delay at the applicable
insurer and the Depositor has delivered the
Officer's Certificate to such effect to the
Trustee. The Depositor shall forward
or cause to be forwarded to the Trustee (1)
from time to time additional
original documents evidencing an assumption
or modification of a Mortgage Loan
and (2) any other documents required to be
delivered by the Depositor or the
applicable Servicer to the Trustee or the
Custodian on the Trustee's behalf. In
the event that the original Mortgage is not
delivered and in connection with the
payment in full of the related Mortgage
Loan the public recording office
requires the presentation of a "lost
instruments affidavit and indemnity" or any
equivalent document, because only a copy of
the Mortgage can be delivered with
the instrument of satisfaction or
reconveyance, the Depositor shall prepare,
execute and deliver or cause to be
prepared, executed and delivered, on behalf
of the Trust, such a document to the public
recording office.
Upon discovery by the Depositor or notice from Wells Fargo Bank,
the
Master Servicer or Securities Administrator
that a Document Transfer Event has
occurred, the Depositor shall, with respect
to Mortgage Loans purchased by the
Seller from Wells Fargo Bank, deliver or
cause to be delivered to the Trustee or
the Custodian, on behalf of 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 or Custodian, as applicable, 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 Co-op Shares, the originals
of
the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The
executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording
thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing
statements required by state law, evidencing a complete and
unbroken
line from the mortgagee to the Trustee with evidence of
recording
thereon
(or in a form suitable for recordation).
As promptly as practicable subsequent to such transfer and
assignment, the Master Servicer shall
(except for any Mortgage which has been
recorded in the name of MERS or its
designee) enforce the obligations of the
related Servicer pursuant to the related
Servicing Agreement to (I) cause each
Assignment of Mortgage to be in proper form
for recording in the appropriate
public office for real property records
within the time period required in the
applicable Servicing Agreement and (II) at
the Depositor's expense, cause to be
delivered for recording in the appropriate
public office for real property
records the Assignments of the Mortgages to
the Trustee, except that, with
respect to any Assignment of a Mortgage as
to which the related Servicer has not
received the information required to
prepare such assignment in recordable form,
such Servicer's obligation to do so and to
deliver the same for such recording
shall be as soon as practicable after
receipt of such information and in
accordance with the applicable Servicing
Agreement and, no recording of an
Assignment of Mortgage will be required in
a state if either (i) the Depositor
furnishes to the Trustee and the Securities
Administrator an unqualified Opinion
of Counsel reasonably acceptable to the
Trustee and the Securities Administrator
to the effect that recordation of such
assignment is not necessary under
applicable state law to preserve the
Trustee's interest in the related Mortgage
Loan against the claim of any subsequent
transferee of such Mortgage Loan or any
successor to, or creditor of, the Depositor
or the originator of such Mortgage
Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not
required by either Rating Agency in order
to obtain the initial ratings on the
Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of
delivering the above documents to
the Trustee, or the Custodian on the
Trustee's behalf, will cause the applicable
Servicer to deliver to the Master Servicer
for deposit in the Master Servicer
Custodial Account the portion of such
payment that is required to be deposited
in the Master Servicer Custodial Account
pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following
paragraph, the Trustee declares that
it, or the Custodian as its agent, will
hold the documents referred to in
Section 2.01 and the other documents
delivered to it constituting the Mortgage
Files, and that it will hold such other
assets as are included in the Trust
Estate delivered to it, in trust for the
exclusive use and benefit of all
present and future Certificateholders. Upon
execution and delivery of this
document, the Trustee shall deliver or
cause the Custodian to deliver to the
Depositor and the Master Servicer a
certification in the form of Exhibit M
hereto (the "Initial Certification") to the
effect that, except as may be
specified in a list of exceptions attached
thereto, it has received the original
Mortgage Note relating to each of the
Mortgage Loans listed on the Mortgage Loan
Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, or cause the
Custodian to review, the Mortgage Files
in its possession, and shall deliver to the
Depositor and the Master Servicer a
certification in the form of Exhibit N
hereto (the "Final Certification") to the
effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule,
except as may be specified in a list of
exceptions attached to such Final
Certification, such Mortgage File contains
all of the items required to be
delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a
Mortgage File which does not meet the
requirements of Section 2.01 or is omitted
from such Mortgage File or if the
Depositor, the Master Servicer, the
Trustee, the Securities Administrator or the
Custodian discovers a breach by a Servicer
or the Seller of any representation,
warranty or covenant under the Servicing
Agreements or the Mortgage Loan
Purchase Agreement in respect of any
Mortgage Loan and such breach materially
adversely affects the interest of the
Certificateholders in the related Mortgage
Loan (provided that any such breach that
causes the Mortgage Loan not to be a
"qualified mortgage" within the meaning of
Section 860G(a)(3) of the code shall
be deemed to materially and adversely
affect the interests of the
Certificateholders), then such party shall
promptly so notify or cause the
Custodian to promptly so notify the Master
Servicer, the Seller, such Servicer
and the Depositor of such failure to meet
the requirements of Section 2.01 or of
such breach and request that the applicable
Servicer or the Seller, as
applicable, deliver such missing
documentation or cure such defect or breach
within 90 days of its discovery or its
receipt of notice of any such failure to
meet the requirements of Section 2.01 or of
such breach. If the Seller or the
applicable Servicer, as applicable, does
not deliver such missing document or
cure such defect or breach in all material
respects during such period, the
Trustee shall enforce the applicable
Servicer's or Seller's obligation, as the
case may be, under the applicable Servicing
Agreement or the Mortgage Loan
Purchase Agreement, as applicable, and
cause the applicable Servicer or Seller,
as applicable, to either (a) solely in the
case of the Seller, substitute for
the related Mortgage Loan a Substitute
Mortgage Loan, which substitution shall
be accomplished in the manner and subject
to the conditions set forth below or
(b) purchase such Mortgage Loan from the
Trust at the Repurchase Price for such
Mortgage Loan; provided, however, that in
no event shall such a substitution
occur more than two years from the Closing
Date; provided, further, that such
substitution or repurchase must occur
within 90 days of when such defect was
discovered if such defect will cause the
Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section
860G(a)(3) of the Code.
In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported
genuineness of any such document and any
signature thereon. It is understood that
the scope of the Trustee's or the
Custodian's review of the Mortgage Files is
limited solely to confirming that
the documents listed in Section 2.01 have
been received and further confirming
that any and all documents delivered
pursuant to Section 2.01 appear on their
face to have been executed and relate to
the Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon
the review of items (i) and (xi) in the
definition of Mortgage Loan Schedule.
Neither the Trustee nor the Custodian
shall have any responsibility for
determining whether any document is valid and
binding, whether the text of any assignment
or endorsement is in proper or
recordable form, whether any document has
been recorded in accordance with the
requirements of any applicable
jurisdiction, or whether a blanket assignment is
permitted in any applicable
jurisdiction.
In the event of a discovery of a breach of any representation
or
warranty of a Servicer or the Seller, the
Trustee shall enforce the rights of
the Trust under the Servicing Agreements
and the Mortgage Loan Purchase
Agreement for the benefit of the
Certificateholders. In the event of a breach of
the representations or warranties with
respect to the Mortgage Loans set forth
in a Servicing Agreement, the Trustee shall
enforce the right of the Trust to be
indemnified for such breach of
representation or warranty. In addition, if a
breach of a representation set forth in
clauses (k) and (o) of paragraph 3 or
clauses (f) and (oo) of paragraph 4 of the
Mortgage Loan Purchase Agreement
occurs as a result of a violation of an
applicable predatory or abusive lending
law, the Trustee shall enforce the right of
the Trust to reimbursement by the
Seller for all costs or damages incurred by
the Trust as a result of the
violation of such law (such amount, the
"Reimbursement Amount"), but, in the
case of a breach of a representation set
forth in clauses (k) and (o) of
paragraph 3, only to the extent the
applicable Servicer does not so reimburse
the Trust. It is understood and agreed
that, except for any indemnification
provided in the Servicing Agreements and
the payment of any Reimbursement
Amount, the obligation of a Servicer or the
Seller to cure or to repurchase (or
substitute, in the case of the Seller) any
Mortgage Loan as to which a document
is missing, a material defect in a
constituent document exists or as to which
such a breach has occurred and is
continuing shall constitute the sole remedy
against a Servicer or the Seller in respect
of such omission, defect or breach
available to the Trustee on behalf of the
Certificateholders.
It is understood and agreed that the representations and
warranties
set forth in the Mortgage Loan Purchase
Agreement shall survive delivery of the
Mortgage Files to the Trustee and shall
inure to the benefit of the
Certificateholders notwithstanding any
restrictive or qualified endorsement or
assignment. With respect to the
representations and warranties set forth in the
Mortgage Loan Purchase Agreement that are
made to the best of the Seller's
knowledge or as to which the Seller had no
knowledge, if it is discovered by the
Depositor, the Master Servicer or the
Trustee that the substance of such
representation or warranty is inaccurate
and such inaccuracy materially and
adversely affects the interest of the
Certificateholders in the related Mortgage
Loan then, notwithstanding the Seller's
lack of knowledge with respect to the
substance of such representation or
warranty being inaccurate as the time the
representation or warranty was made, such
inaccuracy shall be deemed a breach of
the applicable representation or
warranty.
The representations and warranties of each Servicer with respect
to
the applicable Mortgage Loans in the
related Servicing Agreement, which have
been assigned to the Trustee hereunder,
were made as of the date specified in
such Servicing Agreement. To the extent
that any fact, condition or event with
respect to a Mortgage Loan constitutes a
breach of both (i) a representation or
warranty of a Servicer under the related
Servicing Agreement and (ii) a
representation or warranty of the Seller
under the Mortgage Loan Purchase
Agreement, the only right or remedy of the
Trustee or of any Certificateholder
shall be the Trustee's right to enforce the
obligations of the applicable
Servicer under any applicable
representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no
obligation or liability with respect
to any breach of a representation or
warranty made by it with respect to the
Mortgage Loans if the fact, condition or
event constituting such breach also
constitutes a breach of a representation or
warranty made by the applicable
Servicer in the applicable Servicing
Agreement, without regard to whether such
Servicer fulfills its contractual
obligations in respect of such representation
or warranty. The Trustee further
acknowledges that the Depositor shall have no
obligation or liability with respect to any
breach of any representation or
warranty with respect to the Mortgage Loans
(except as set forth in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee, for the benefit of
the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment
of Mortgage (except for any Mortgage
which has been recorded in the name of MERS
or its designee), and such other
documents and agreements as are otherwise
required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No
substitution is permitted to be made in any
calendar month after the
Determination Date for such month. Monthly
Payments due with respect to any such
Substitute Mortgage Loan in the month of
substitution shall not be part of the
Trust Estate. For the month of
substitution, distributions to Certificateholders
will include the Monthly Payment due for
such month on any Defective Mortgage
Loan for which the Seller has substituted a
Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for
the
benefit of the Certificateholders to
reflect the removal of each Mortgage Loan
that has become a Defective Mortgage Loan
and the substitution of the Substitute
Mortgage Loan or Loans and the Master
Servicer shall deliver the amended
Mortgage Loan Schedule to the Securities
Administrator, the Trustee and the
Custodian. Upon such substitution, each
Substitute Mortgage Loan shall be
subject to the terms of this Agreement in
all respects, and the Seller shall be
deemed to have made to the Trustee with
respect to such Substitute Mortgage
Loan, as of the date of substitution, the
representations and warranties made
pursuant to paragraph 4 of the Mortgage
Loan Purchase Agreement. Upon any such
substitution and the deposit to the Master
Servicer Custodial Account of any
required Substitution Adjustment Amount (as
described in the next paragraph) and
receipt of a Request for Release, the
Trustee shall upon receipt of written
notice from the Master Servicer of such
deposit, release, or shall direct the
Custodian to release, the Mortgage File
relating to such Defective Mortgage Loan
to the Seller and shall execute and deliver
at the Seller's direction such
instruments of transfer or assignment
prepared by the Seller, in each case
without recourse, as shall be necessary to
vest title in the Seller, or its
designee, to the Trustee's interest in any
Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Defective
Mortgage Loans, the amount (if any) by
which the aggregate principal balance of
all such Substitute Mortgage Loans as
of the date of substitution is less than
the aggregate Stated Principal Balance
of all such Defective Mortgage Loans (after
application of the principal portion
of the Monthly Payments due in the month of
substitution) (the "Substitution
Adjustment Amount") plus an amount equal to
the aggregate of any unreimbursed
Advances with respect to such Defective
Mortgage Loans shall be remitted to the
Master Servicer Custodial Account by the
Seller on or before the Servicer
Remittance Date for the Distribution Date
in the month succeeding the calendar
month during which the related Mortgage
Loan is required to be purchased or
replaced hereunder. The Repurchase Price of
any repurchase and the Substitution
Adjustment Amount, if any, shall be
deposited in the Master Servicer Custodial
Account. The Master Servicer shall give the
Securities Administrator and the
Trustee written notice of such
deposits.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage
File in accordance with and subject to
the terms and conditions set forth herein.
The Master Servicer shall cause to be
promptly delivered to the Trustee, upon the
execution or, in the case of
documents requiring recording, receipt
thereof, the originals of such other
documents or instruments constituting the
Mortgage File as come into the Master
Servicer's possession from time to
time.
The Trustee 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 had been provided in lieu of a
title policy for any Mortgage Loan, the
Trustee or the applicable Custodian on its
behalf, as applicable, 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
Servicer.
The Master Servicer hereby makes the following representations
and
warranties to the Depositor, the Securities
Administrator and the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered
and validly existing in good standing under the laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted and is licensed, qualified and in good
standing
in each of the states where a Mortgaged Property is located if
the laws
of such state require licensing or qualification in order to
conduct
business of the type conducted by the Master Servicer. The
Master
Servicer
has power and authority to execute and deliver this Agreement
and
to perform
in accordance herewith; the execution, delivery and performance
of this
Agreement (including all instruments of transfer to be
delivered
pursuant
to this Agreement) by the Master Servicer and the consummation
of
the
transactions contemplated hereby have been duly and validly
authorized. This Agreement, assuming due authorization, execution
and
delivery
by the other parties hereto, evidences the valid, binding and
enforceable obligation of the Master Servicer, subject to
applicable law
except as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other
similar
laws
affecting the enforcement of the rights of creditors and (B)
general
principles
of equity, whether enforcement is sought in a proceeding in
equity or
at law. All requisite corporate action has been taken by the
Master
Servicer to make this Agreement valid and binding upon the
Master
Servicer
in accordance with its terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or
body, or federal or state regulatory authority
having
jurisdiction over the Master Servicer is required or, if
required,
such
consent, approval, authorization or order has been or will, prior
to
the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the Master Servicer
and will
not result in the breach of any term or provision of the
charter
or by-laws
of the Master Servicer or result in the breach of any term or
provision
of, or conflict with or constitute a default under or result in
the
acceleration of any obligation under, any agreement, indenture or
loan
or credit
agreement or other instrument to which the Master Servicer or
its
property is subject, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Master Servicer
or its
property
is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the Master Servicer, threatened against the
Master
Servicer which, either individually or in the aggregate, would
result in
any material adverse change in the business, operations,
financial
condition, properties or assets of the Master Servicer, or in
any
material impairment of the right or ability of the Master Servicer
to
carry on
its business substantially as now conducted or which would draw
into
question the validity of this Agreement or the Mortgage Loans or
of
any action
taken or to be taken in connection with the obligations of the
Master
Servicer contemplated herein, or which would materially impair
the
ability of the
Master Servicer to perform under the terms of this
Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the
respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties
of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee
with
respect to the Mortgage Loans or each
Mortgage Loan, as the case may be, as of
the date hereof or such other date set
forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment
contemplated
herein,
the Depositor was the sole owner and holder of the Mortgage
Loans.
The
Mortgage Loans were not assigned or pledged by the Depositor and
the
Depositor
had good and marketable title thereto, and the Depositor had
full right
to transfer and sell the Mortgage Loans to the Trustee free and
clear of
any encumbrance, participation interest, lien, equity, pledge,
claim or
security interest and had full right and authority subject to
no
interest
or participation in, or agreement with any other party to sell
or
otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right,
title and interest in the Mortgage Loans to the Trustee on
behalf
of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred
the
Mortgage
Loans to the Trustee on behalf of the Trust with any intent to
hinder,
delay or defraud an of its creditors.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall
survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and
shall inure to the benefit of the
Trustee, notwithstanding any restrictive or
qualified endorsement or assignment.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Senior
Certificates (other than the 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 Uncertificated Lower-Tier Interests as
classes of "regular interests" and
the Class 1-A-LR Certificate as the single
class of "residual interest" in the
Lower-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each of
the Upper-Tier REMIC and Lower-Tier
REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest
possible maturity date" of the regular
interests in the Upper-Tier REMIC and
Lower-Tier REMIC is December 20, 2034.
Section 2.08 Execution and Delivery of Certificates. The
Securities
Administrator (i) acknowledges the issuance
of and hereby declares that it holds
the Uncertificated Lower-Tier Interests on
behalf of the Upper-Tier REMIC and
the Certificateholders and (ii) has
executed and delivered to or upon the order
of the Depositor, in exchange for the
Mortgage Loans and Uncertificated
Lower-Tier Interests, together with all
other assets included in the definition
of "Trust Estate," receipt of which is
hereby acknowledged, the Certificates in
authorized denominations which, together
with the Uncertificated Lower-Tier
Interests, evidence ownership of the entire
Trust Estate.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and on
behalf of the Certificateholders, the
Master Servicer shall supervise, monitor
and oversee the obligations of the
Servicers to service and administer their
respective Mortgage Loans in accordance
with the terms of the applicable
Servicing Agreement and shall have full
power and authority to do any and all
things which it may deem necessary or
desirable in connection with such master
servicing and administration. In performing
its obligations hereunder, the
Master Servicer shall act in a manner
consistent with this Agreement, subject to
the prior sentence, and with customary and
usual standards of practice of
prudent mortgage loan master servicers.
Furthermore, the Master Servicer shall
oversee and consult with each Servicer as
necessary from time-to-time to carry
out the Master Servicer's obligations
hereunder, shall receive, review and
evaluate all reports, information and other
data provided to the Master Servicer
by each Servicer and shall cause each
Servicer to perform and observe the
covenants, obligations and conditions to be
performed or observed by such
Servicer under the applicable Servicing
Agreement. The Master Servicer shall
independently and separately monitor each
Servicer's servicing activities with
respect to each related Mortgage Loan,
reconcile the results of such monitoring
with such information provided in the
previous sentence on a monthly basis and
coordinate corrective adjustments to the
Servicers' and Master Servicer's
records, and based on such reconciled and
corrected information, prepare the
Master Servicer's Certificate and any other
information and statements required
hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan
monitoring with the actual remittances of
the Servicers to the Master Servicer
Custodial Account pursuant to the
applicable Servicing Agreements.
The relationship of the Master Servicer (and of any successor to
the
Master Servicer as master servicer under
this Agreement) to the Trustee and the
Securities Administrator under this
Agreement is intended by the parties to be
that of an independent contractor and not
that of a joint venturer, partner or
agent.
Section 3.02 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to
the
Trustee, the Securities Administrator and
the Depositor the compliance by each
Servicer with its duties under the related
Servicing Agreement. In the review of
each Servicer's activities, the Master
Servicer may rely upon an officer's
certificate of the Servicer with regard to
such Servicer's compliance with the
terms of its Servicing Agreement. In the
event that the Master Servicer, in its
judgment, determines that a Servicer should
be terminated in accordance with its
Servicing Agreement, or that a notice
should be sent pursuant to such Servicing
Agreement with respect to the occurrence of
an event that, unless cured, would
constitute grounds for such termination,
the Master Servicer shall notify the
Depositor, the Securities Administrator and
the Trustee thereof and the Master
Servicer shall issue such notice or take
such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the
obligations of each Servicer under the
related Servicing Agreement, and shall, in
the event that a Servicer fails to
perform its obligations in accordance with
the related Servicing Agreement,
subject to the preceding paragraph,
terminate the rights and obligations of such
Servicer thereunder and act as successor
Servicer of the related Mortgage Loans
under the applicable Servicing Agreement
(except, in the case of the termination
of Wells Fargo Bank as Servicer under the
Wells Fargo Bank Servicing Agreement,
the Trustee, if it so elects, shall act as
successor Servicer, or shall appoint
a successor Servicer, of the related
Mortgage Loans under the Wells Fargo Bank
Servicing Agreement) or cause the Trustee
to enter in to a new Servicing
Agreement with a successor Servicer
selected by the Master Servicer (except, in
the case of the Wells Fargo Bank Servicing
Agreement, the Trustee shall select
the successor Servicer); provided, however,
it is understood and acknowledged by
the parties hereto that there will be a
period of transition (not to exceed 90
days) before the actual servicing functions
can be fully transferred to such
successor Servicer. Such enforcement,
including, without limitation, the legal
prosecution of claims, termination of
Servicing Agreements and the pursuit of
other appropriate remedies, shall be in
such form and carried out to such an
extent and at such time as the Master
Servicer, in its good faith business
judgment, would require were it the owner
of the related Mortgage Loans. The
Master Servicer and Trustee, as applicable,
shall pay the costs of such
enforcement at its own expense, and shall
be reimbursed therefor only (i) from a
general recovery resulting from such
enforcement to the extent, if any, that
such recovery exceeds all amounts due in
respect of the related Mortgage Loan or
(ii) from a specific recovery of costs,
expenses or attorneys fees against the
party whom such enforcement is directed,
provided that the Master Servicer and
the Trustee, as applicable, shall not be
required to prosecute or defend any
legal action except to the extent that the
Master Servicer or the Trustee, as
applicable, shall have received reasonable
indemnity for its costs and expenses
in pursuing such action.
(c) To the extent that the costs and expenses of the Master
Servicer
or the Trustee, as applicable, related to
any termination of a Servicer,
appointment of a successor Servicer or the
transfer and assumption of servicing
by the Master Servicer or the Trustee, as
applicable, with respect to any
Servicing Agreement (including, without
limitation, (i) all legal costs and
expenses and all due diligence costs and
expenses associated with an evaluation
of the potential termination of the
Servicer as a result of an event of default
by such Servicer and (ii) 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 Servicer to
correct any errors or insufficiencies in
the servicing data or otherwise to enable
the successor Servicer to service the
Mortgage Loans in accordance with the
related Servicing Agreement) are not fully
and timely reimbursed by the terminated
Servicer, the Master Servicer or the
Trustee, as applicable, shall be entitled
to reimbursement of such costs and
expenses from the Master Servicer Custodial
Account.
(d) To the extent that any Servicing Transfer Costs are not
fully
and timely reimbursed by the terminated
Servicer, the Master Servicer or the
Trustee, as applicable, shall be entitled
to reimbursement of such costs and
expenses from the Master Servicer Custodial
Account.
(e) The Master Servicer shall require each Servicer to comply
with
the remittance requirements and other
obligations set forth in the related
Servicing Agreement.
(f) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and
warranties of the Servicer, if any, that
it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Master Servicer shall maintain, at its own
expense, a blanket fidelity bond and
an errors and omissions insurance policy,
with broad coverage on all officers,
employees or other persons involved in the
performance of its obligations as
Master Servicer hereunder. These policies
must insure the Master Servicer
against losses resulting from dishonest or
fraudulent acts committed by the
Master Servicer's personnel, any employees
of outside firms that provide data
processing services for the Master
Servicer, and temporary contract employees or
student interns. No provision of this
Section 3.03 requiring such fidelity bond
and errors and omissions insurance shall
diminish or relieve the Master Servicer
from its duties and obligations as set
forth in this Agreement. The minimum
coverage under any such bond and insurance
policy shall be at least equal to the
corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC
in the FHLMC Sellers' & Servicers'
Guide, as amended or restated from time to
time, or in an amount as may be permitted
to the Master Servicer by express
waiver of FNMA or FHLMC. In the event that
any such policy or bond ceases to be
in effect, the Master Servicer shall obtain
a comparable replacement policy or
bond from an insurer or issuer, meeting the
requirements set forth above as of
the date of such replacement.
Section 3.04 Access to Certain Documentation.
The
Master Servicer shall provide and cause each Servicer to
provide
in accordance with the related Servicing
Agreement to the OCC, the OTS, the FDIC
and to comparable regulatory authorities
supervising Holders of Certificates and
the examiners and supervisory agents of the
OCC, the OTS, the FDIC and such
other authorities, access to the
documentation required by applicable
regulations of the OCC, the OTS, the FDIC
and such other authorities with
respect to the Mortgage Loans. Such access
shall be afforded without charge, but
only upon reasonable and prior written
request and during normal business hours
at the offices designated by the Master
Servicer and the related Servicer. In
fulfilling such request for access, the
Master Servicer shall not be responsible
to determine the sufficiency of any
information provided by such Servicer.
Nothing in this Section 3.04 shall limit
the obligation of the Master Servicer
and the related Servicer to observe any
applicable law and the failure of the
Master Servicer or the related Servicer to
provide access as provided in this
Section 3.04 as a result of such obligation
shall not constitute a breach of
this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The Master Servicer shall not take, or permit any Servicer
(to
the extent such action is prohibited under
the applicable Servicing Agreement)
to take, any action that would result in
noncoverage under any applicable
Primary Mortgage Insurance Policy of any
loss which, but for the actions of such
Master Servicer or Servicer, would have
been covered thereunder. The Master
Servicer shall use its best reasonable
efforts to cause each Servicer (to the
extent required under the related Servicing
Agreement) to keep in force and
effect (to the extent that the Mortgage
Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance
applicable to each Mortgage Loan in
accordance with the provisions of this
Agreement and the related Servicing
Agreement, as applicable. The Master
Servicer shall not, and shall not permit
any Servicer (to the extent required under
the related Servicing Agreement) to,
cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is in
effect at the date of the initial issuance
of the Mortgage Note and is required
to be kept in force hereunder except in
accordance with the provisions of this
Agreement and the related Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer
(to the extent required under the related
Servicing Agreement) to present, on
behalf of the Trustee and the
Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies
and, in this regard, to take such
reasonable action as shall be necessary to
permit recovery under any Primary
Mortgage Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to
Sections 3.08 and 3.09, any amounts
collected by the Master Servicer or any
Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the
Master Servicer Custodial Account, subject
to withdrawal pursuant to Section
3.12.
Section 3.06 Rights of the Depositor, the Securities
Administrator
and the Trustee in Respect of the Master
Servicer.
The Depositor may, but is not obligated to, enforce the
obligations
of the Master Servicer hereunder and may,
but is not obligated to, perform, or
cause a designee to perform, any defaulted
obligation of the Master Servicer
hereunder and in connection with any such
defaulted obligation to exercise the
related rights of the Master Servicer
hereunder; provided that the Master
Servicer shall not be relieved of any of
its obligations hereunder by virtue of
such performance by the Depositor or its
designee. None of the Securities
Administrator, the Trustee or the Depositor
shall have any responsibility or
liability for any action or failure to act
by the Master Servicer and the
Securities Administrator, the Trustee or
the Depositor shall not be obligated to
supervise the performance of the Master
Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
If the Master Servicer shall for any reason no longer be the
Master
Servicer hereunder (including by reason of
an Event of Default), the Trustee
shall within 90 days of such time, assume,
if it so elects, or shall appoint a
successor Master Servicer to assume, all of
the rights and obligations of the
Master Servicer hereunder arising
thereafter. Any such assumption shall be
subject to Sections 7.02 and 8.05.
The predecessor Master Servicer shall, upon request of the
Trustee,
but at the expense of the predecessor
Master Servicer, deliver to the assuming
party all master servicing documents and
records and an accounting of amounts
collected or held by it and otherwise use
its best efforts to effect the orderly
and efficient transfer of such substitute
documentation and records to the
assuming party. The Trustee shall be
entitled to be reimbursed from the Master
Servicer (or the Trust if the Master
Servicer is unable to fulfill its
obligations hereunder) for all Master
Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts.
The Master Servicer shall enforce the obligation of each Servicer
to
establish and maintain a Servicer Custodial
Account in accordance with the
applicable Servicing Agreement, with
records to be kept with respect thereto on
a Mortgage Loan by Mortgage Loan basis,
into which accounts shall be deposited
within 48 hours (or as of such other time
specified in the related Servicing
Agreement) of receipt all collections of
principal and interest on any Mortgage
Loan and with respect to any REO Property
received by a Servicer, including
Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, Recoveries and
Advances made from the Servicer's own funds
(less servicing compensation as
permitted by the applicable Servicing
Agreement in the case of any Servicer) and
all other amounts to be deposited in the
Servicer Custodial Account. The Master
Servicer is hereby authorized to make
withdrawals from and deposits to the
related Servicer Custodial Account for
purposes required or permitted by this
Agreement.
Section 3.09 Collection of Mortgage Loan Payments; Servicer
Custodial Account, Master Servicer
Custodial Account and Certificate Account.
(a) Continuously from the date hereof until
the principal and interest on all
Mortgage Loans are paid in full, the Master
Servicer shall enforce the
obligations of the Servicers to collect all
payments due under the terms and
provisions of the Mortgage Loans when the
same shall become due and payable to
the extent such procedures shall be
consistent with the applicable Servicing
Agreement.
(b) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be
an Eligible Account and which may be
a sub-account of the Certificate Account
for so long as the Master Servicer and
the Securities Administrator are the same
Person. The Master Servicer shall
promptly upon receipt, deposit in the
Master Servicer Custodial Account and
retain therein any amounts which are
required to be deposited in the Master
Servicer Custodial Account by the Master
Servicer.
(c) The Securities Administrator shall establish and maintain
the
Certificate Account, which shall be deemed
to consist of one sub-account and
into which the Master Servicer will deposit
on or prior to 11:00 AM New York
time, on each Distribution Date (or, if the
Securities Administrator is no
longer the same Person as, or an Affiliate
of, the Master Servicer, the Business
Day preceding each Distribution Date), all
amounts on deposit in the Master
Servicer Custodial Account for distribution
to Certificateholders. The
Certificate Account shall be an Eligible
Account.
(d) On a daily basis within one Business Day of receipt, except
as
otherwise specifically provided herein, the
Master Servicer shall deposit or
cause to be deposited into the Master
Servicer Custodial Account the following
payments and collections remitted to the
Master Servicer by each Servicer from
its respective Servicer Custodial Account
pursuant to the related Servicing
Agreement or otherwise received by the
Master Servicer in respect of the
Mortgage Loans subsequent to the Cut-Off
Date (other than in respect of
principal and interest due on the Mortgage
Loans on or before the Cut-Off Date)
and the following amounts required to be
deposited hereunder:
(i) all payments on
account of principal of the Mortgage Loans,
including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net
of the
related Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds,
other
than
Insurance Proceeds to be (1) applied to the restoration or repair
of
the
Mortgaged Property, (2) released to the Mortgagor in accordance
with
Customary
Servicing Procedures or (3) required to be deposited to an
Escrow
Account pursuant to Section 3.10 and (B) any Insurance Proceeds
released
from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant
to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the Master Servicer Custodial
Account;
(v) any amounts relating to REO Property required to be remitted
by
the
applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant
to
the
related Servicing Agreement (or, if applicable, by the Master
Servicer
or Trustee
pursuant to Section 3.22) and any Compensating Interest paid by
the
applicable Servicer pursuant to the related Servicing
Agreement;
(vii) all Repurchase Prices, all Substitution Adjustment Amounts
and
all
Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries ; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to
be
deposited, it may at any time withdraw such
amount from the Master Servicer
Custodial Account, any provision herein to
the contrary notwithstanding. All
funds required to be deposited in the
Master Servicer Custodial Account shall be
held by the Master Servicer in trust for
the Certificateholders until disbursed
in accordance with this Agreement or
withdrawn in accordance with Section 3.12.
(e) Each institution at which the Master Servicer Custodial
Account
is maintained shall invest the funds
therein as directed in writing by the
Master Servicer in Permitted Investments,
which shall mature not later than the
Business Day next preceding the
Distribution Date (except that if such Permitted
Investment is an obligation of the
institution that maintains such account, then
such Permitted Investment shall mature not
later than such Distribution Date)
and, in each case, shall not be sold or
disposed of prior to its maturity. All
such Permitted Investments shall be made in
the name of the Trustee, for the
benefit of the Certificateholders. All
Master Servicer Custodial Account
Reinvestment Income shall be for the
benefit of the Master Servicer as part of
its master servicing compensation and shall
be remitted to the Master Servicer
monthly as provided herein. The amount of
any losses realized in the Master
Servicer Custodial Account incurred in any
such account in respect of any such
investments shall promptly be deposited by
the Master Servicer from its own
funds in the Master Servicer Custodial
Account. Each institution at which the
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.
(f) The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and
the Rating Agencies of any proposed
change of location of the Master Servicer
Custodial Account not later than 30
days after and not more that 45 days prior
to any change thereof. The Securities
Administrator shall give notice to the
Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any
proposed change of the location of the
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 Account
and the Certificate Account shall be
evidenced by a certification substantially
in the form of Exhibit F hereto.
(g) The Securities Administrator shall designate the Upper-Tier
Certificate Sub-Account as a sub-account of
the Certificate Account. On each
Distribution Date (other than the Final
Distribution Date, if such Final
Distribution Date is in connection with a
purchase of the assets of the Trust
Estate by the Master Servicer), the
Securities Administrator shall, from funds
available on deposit in the Certificate
Account, be deemed to deposit into the
Upper-Tier Certificate Sub-Account, the
Lower-Tier Distribution Amount.
Section 3.10 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.
To the extent required by the related Servicing Agreement and by
the
related Mortgage Note and not violative of
current law, the Master Servicer
shall require each Servicer to establish
and maintain one or more escrow
accounts (for each Servicer, collectively,
the "Escrow Account") and deposit and
retain therein all collections from the
Mortgagors (or advances by such
Servicer) for the payment of taxes,
assessments, hazard insurance premiums or
comparable items for the account of the
Mortgagors. Nothing herein shall require
the Master Servicer to compel a Servicer to
establish an Escrow Account in
violation of applicable law.
Section 3.11 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation
of
the Servicers to afford the Securities
Administrator and the Trustee reasonable
access to all records and documentation
regarding the Mortgage Loans and all
accounts, insurance information and other
matters relating to this Agreement,
such access being afforded without charge,
but only upon reasonable request and
during normal business hours at the office
designated by the Master Servicer or
the applicable Servicer.
Section 3.12 Permitted Withdrawals from the Certificate Account
and
the Master Servicer Custodial Account.
(a) The Securities Administrator shall withdraw funds from the
Certificate Account for distributions to
Certificateholders in the manner
specified in this Agreement. In addition,
the Master Servicer may from time to
time make withdrawals from the Master
Servicer Custodial Account for the
following purposes:
(i) to pay to the Servicers (to the extent not previously
retained
by them),
the Servicing Fee to which they are entitled pursuant to the
Servicing
Agreements, to pay to the Securities Administrator the
Securities
Administrator Fee and to pay to itself any Master Servicer
Custodial
Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee any
amounts
due to the Securities Administrator and the Trustee under this
Agreement
(including, but not limited to, all amounts provided for under
Section
9.11, other than the amounts provided for in the first sentence
of
Section
9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or
the
Trustee)
for unreimbursed Advances made pursuant to the related
Servicing
Agreement
(or in the case of the Master Servicer or Trustee, pursuant to
Section
3.22), such right of reimbursement pursuant to this clause
(iii)
being
limited to amounts received on the Mortgage Loans serviced by
such
Servicer
(or, if applicable, the Master Servicer or the Trustee) in
respect of
which any such Advance was made;
(iv) to reimburse the Servicers for any Nonrecoverable Advance
previously
made, such right of reimbursement pursuant to this clause (iv)
being
limited to amounts received on the Mortgage Loans serviced by
such
Servicer
(of, if applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicers for Insured Expenses from the
related
Insurance
Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02,
Section
2.04 or
Section 3.16(f), all amounts received thereon after the date of
such
purchase;
(vii) to reimburse itself or the Depositor for expenses incurred
by
any of
them and reimbursable pursuant to this Agreement, including but
not
limited
to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial
Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial
Account
upon
termination of this Agreement pursuant to Section 10.01.
(b) On each Distribution Date, funds on deposit in the
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 and the Class 1-A-R
Certificate 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 3.13 Maintenance of Hazard Insurance and Other
Insurance.
For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the
related Servicing Agreements to maintain
or cause to be maintained fire, flood and
hazard insurance with extended
coverage customary in the area where the
Mortgaged Property is located in
accordance with the related Servicing
Agreements. It is understood and agreed
that such insurance provided for in this
Section 3.13 shall be with insurers
meeting the eligibility requirements set
forth in the applicable Servicing
Agreement and that no earthquake or other
additional insurance is to be required
of any Mortgagor or to be maintained on
property acquired in respect of a
defaulted loan, other than pursuant to such
applicable laws and regulations as
shall at any time be in force and as shall
require such additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by
the
Master Servicer, or by any Servicer, under
any insurance policies (other than
amounts to be applied to the restoration or
repair of the property subject to
the related Mortgage or released to the
Mortgagor in accordance with the
applicable Servicing Agreement) shall be
deposited into the Master Servicer
Custodial Account, subject to withdrawal
pursuant to Section 3.12. Any cost
incurred by the Master Servicer or any
Servicer in maintaining any such
insurance if the Mortgagor defaults in its
obligation to do so shall be added to
the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so
permit; provided, however, that the
addition of any such cost shall not be taken
into account for purposes of calculating
the distributions to be made to
Certificateholders and shall be recoverable
by the Master Servicer or such
Servicer pursuant to Sections 3.08 and
3.09.
Section 3.14 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the
applicable
Servicing Agreement) cause the related
Servicer to, prepare and present on
behalf of the Trustee and the
Certificateholders all claims under the Insurance
Policies and take such actions (including
the negotiation, settlement,
compromise or enforcement of the insured's
claim) as shall be necessary to
realize recovery under such policies. Any
proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in
respect of such policies, bonds or
contracts shall be promptly deposited in the
Master Servicer Custodial Account upon
receipt, except that any amounts realized
that are to be applied to the repair or
restoration of the related Mortgaged
Property as a condition precedent to the
presentation of claims on the related
Mortgage Loan to the insurer under any
applicable Insurance Policy need not be
so deposited (or remitted).
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the applicable Servicing Agreement and
to
the extent Mortgage Loans contain
enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to
enforce such clauses in accordance with
the applicable Servicing Agreement. If
applicable law prohibits the enforcement
of a due-on-sale clause or such clause is
otherwise not enforced in accordance
with the applicable Servicing Agreement,
and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be
released from liability in accordance
with the applicable Servicing
Agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Master Servicer shall cause each Servicer (to the
extent
required under the related Servicing
Agreement) to foreclose upon or otherwise
comparably convert the ownership of
Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in
default and as to which no
satisfactory arrangements can be made for
collection of delinquent payments, all
in accordance with the applicable Servicing
Agreement.
(b) With respect to any REO Property, the deed or certificate
of
sale shall be taken in the name of the
Trust for the benefit of the
Certificateholders, or its nominee, on
behalf of the Certificateholders. The
Master Servicer shall enforce the
obligation of the Servicers, to the extent
provided in the applicable Servicing
Agreement, to (i) cause name of the Trust
to be placed on the title to such REO
Property and (ii) ensure that the title to
such REO Property references this
Agreement. The Master Servicer shall, to the
extent provided in the applicable Servicing
Agreement, cause the applicable
Servicer to sell any REO Property as
expeditiously as possible and in accordance
with the provisions of this Agreement and
the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell
such REO Property, the Master
Servicer shall cause the applicable
Servicer to protect and conserve such REO
Property in the manner and to the extent
required by the applicable Servicing
Agreement, subject to the REMIC
Provisions.
(c) The Master Servicer shall, to the extent required by the
related
Servicing Agreement, cause the applicable
Servicer to deposit all funds
collected and received in connection with
the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any
REO
Property, shall be entitled to
reimbursement for any related unreimbursed
Periodic Advances and other unreimbursed
advances as well as any unpaid
Servicing Fees from Liquidation Proceeds
received in connection with the final
disposition of such REO Property; provided
that any such unreimbursed Periodic
Advances as well as any unpaid Servicing
Fees may be reimbursed or paid, as the
case may be, prior to final disposition,
out of any net rental income or other
net amounts derived from such REO
Property.
(e) The Liquidation Proceeds from the final disposition of the
REO
Property, net of any payment to the
applicable Servicer as provided above shall
be deposited in the related Servicer
Custodial Account on or prior to the
Determination Date in the month following
receipt thereof and be remitted by
wire transfer in immediately available
funds to the Master Servicer for deposit
into the Master Servicer Custodial
Account.
In the event that the Trust Estate acquires any Mortgaged
Property
as aforesaid or otherwise in connection
with a default or imminent default on a
Mortgage Loan, the Master Servicer shall
enforce the obligation of the related
Servicer to dispose of such Mortgaged
Property within the time period specified
in the applicable Servicing Agreement
unless the Servicer shall have applied for
and received an extension of such period
from the Internal Revenue Service, in
which case the Trust Estate may continue to
hold such Mortgaged Property for the
period of such extension. Notwithstanding
any other provision of this Agreement,
no Mortgaged Property acquired by the Trust
shall be rented (or allowed to
continue to be rented) or otherwise used
for the production of income by or on
behalf of the Trust in such a manner or
pursuant to any terms that would (i)
cause such Mortgaged Property to fail to
qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of
the Code or (ii) subject either
REMIC created hereunder to the imposition
of any federal, state or local income
taxes on the income earned from such
Mortgaged Property under Section 860G(c) of
the Code or otherwise, unless the Master
Servicer or related Servicer, as
applicable, has agreed to indemnify and
hold harmless the Trust with respect to
the imposition of any such taxes.
(f) On the 2nd Business Day prior to the related Distribution
Date,
the Master Servicer shall notify the
Depositor of any Mortgage Loan which is 180
days or more delinquent. The Depositor
shall be entitled, at its option, to
repurchase any such delinquent Mortgage
Loan from the Trust Estate if in the
Depositor's judgment, the default is not
likely to be cured by the Mortgagor.
The purchase price for any such Mortgage
Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan
plus accrued interest thereon at the
Mortgage Interest Rate through the last day
of the month in which such
repurchase occurs. The Depositor shall
notify the related Servicer and the
Master Servicer of its intent to repurchase
such Mortgage Loan. Upon the receipt
of such purchase price, the Master Servicer
shall provide to the Trustee the
notification required by Section 3.17 and
the Trustee or the Custodian shall
promptly release to the Depositor the
Mortgage File relating to the Mortgage
Loan being repurchased.
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the
Master Servicer or the related Servicer of
a notification that payment in full
will be escrowed in a manner customary for
such purposes, the Master Servicer or
the related Servicer will immediately
notify the Trustee (or, at the direction
of the Trustee, the Custodian) by
delivering, or causing to be delivered, two
copies (one of which will be returned to
the Servicer with the Mortgage File) of
a Request for Release (which may be
delivered in an electronic format acceptable
to the Trustee, the Master Servicer and the
related Servicer). Upon receipt of
such request, the Trustee or the Custodian,
as applicable, shall within seven
Business Days release the related Mortgage
File to the Master Servicer or the
related Servicer. The Trustee shall at the
Master Servicer's or the related
Servicer's direction execute and deliver to
the Master Servicer or the related
Servicer the request for reconveyance, deed
of reconveyance or release or
satisfaction of mortgage or such instrument
releasing the lien of the Mortgage,
in each case provided by the Master
Servicer or the related Servicer, together
with the Mortgage Note with written
evidence of cancellation thereon. If the
Mortgage has been recorded in the name of
MERS or its designee, the Master
Servicer shall enforce the applicable
Servicer's obligation under the related
Servicing Agreement take all necessary
action to reflect the release of the
Mortgage on the records of MERS. Expenses
incurred in connection with any
instrument of satisfaction or deed of
reconveyance shall be chargeable to the
related Mortgagor.
From time to time and as shall be appropriate for the servicing
or
foreclosure of any Mortgage Loan, including
for such purpose collection under
any policy of flood insurance, any fidelity
bond or errors or omissions policy,
or for the purposes of effecting a partial
release of any Mortgaged Property
from the lien of the Mortgage or the making
of any corrections to the Mortgage
Note or the Mortgage or any of the other
documents included in the Mortgage
File, the Trustee or the Custodian, as
applicable, shall, upon delivery to the
Trustee (or, at the direction of the
Trustee, the Custodian) of a Request for
Release signed by a Master Servicing
Officer or a Servicing Officer, release the
Mortgage File within seven Business Days to
the Master Servicer or the related
Servicer. Subject to the further
limitations set forth below, the Master
Servicer or the applicable Servicer shall
cause the Mortgage Files so released
to be returned to the Trustee or the
Custodian, as applicable, when the need
therefor no longer exists, unless the
Mortgage Loan is liquidated and the
proceeds thereof are deposited in the
applicable Servicer Custodial Account, in
which case such Servicer shall deliver to
the Trustee or the Custodian, as
applicable, a Request for Release, signed
by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks
to
initiate a foreclosure proceeding in
respect of any Mortgaged Property as
authorized by this Agreement or the
Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause
to be delivered to the Trustee, for
signature, as appropriate, any court
pleadings, requests for trustee's sale or
other documents necessary to effectuate
such foreclosure or any legal action
brought to obtain judgment against the
Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment
or to enforce any other remedies or
rights provided by the Mortgage Note or the
Mortgage or otherwise available at
law or in equity.
Section 3.18 Documents, Records and Funds in Possession of the
Master Servicer to be Held for the
Trustee.
Notwithstanding any other provisions of this Agreement, the
Master
Servicer shall cause each Servicer to
transmit to the Trustee as required by
this Agreement and the Servicing Agreements
all documents and instruments in
respect of a Mortgage Loan coming into the
possession of the Servicer from time
to time and shall account fully to the
Trustee for any funds received by the
Master Servicer or the related Servicer or
which otherwise are collected by the
Master Servicer or the related Servicer as
Liquidation Proceeds, Recoveries or
Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control
of, the Master Servicer or the
related Servicer in respect of any Mortgage
Loans, whether from the collection
of principal and interest payments or from
Liquidation Proceeds, including but
not limited to, any funds on deposit in the
Master Servicer Custodial Account or
any Servicer Custodial Account, shall be
held by the Master Servicer or the
related Servicer for and on behalf of the
Trustee and shall be and remain the
sole and exclusive property of the Trustee,
subject to the applicable provisions
of this Agreement and the related Servicing
Agreement. The Master Servicer also
agrees that it shall not knowingly create,
incur or subject any Mortgage File or
any funds that are deposited in the Master
Servicer Custodial Account or any
Escrow Account, or any funds that otherwise
are or may become due or payable to
the Trustee for the benefit of the
Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of
attachment or other encumbrance
created by the Master Servicer, or assert
by legal action or otherwise any claim
or right of setoff against any Mortgage
File or any funds collected on, or in
connection with, a Mortgage Loan, except,
however, that the Master Servicer
shall be entitled to set off against and
deduct from any such funds any amounts
that are properly due and payable to the
Master Servicer under this Agreement.
Section 3.19 Master Servicer Compensation.
Master servicing compensation in the form of Master Servicer
Custodial Account Reinvestment Income shall
be remitted to the Master Servicer
pursuant to Section 3.12. The Master
Servicer shall be required to pay all
expenses incurred by it in connection with
its master servicing activities
hereunder and shall not be entitled to
reimbursement therefor except as
specifically provided in this
Agreement.
Section 3.20 Annual Statement as to Compliance.
The
Master Servicer shall deliver to the Securities Administrator
(and the Securities Administrator will
forward to the Trustee and each Rating
Agency), no later than March 15 following
the end of each calendar year
commencing with March 2005, an Officer's
Certificate, signed by two officers of
the Master Servicer, stating, as to the
signers thereof, that (a) a review of
the activities of the Master Servicer
during the preceding calendar year and of
the performance of the Master Servicer
under this Agreement or similar
agreements has been made under such
officer's supervision, and (b) to the best
of such officer's knowledge, based on such
review, the Master Servicer has
fulfilled all its obligations under this
Agreement throughout such year, or, if
there has been a default in the fulfillment
of any such obligation, specifying
each such default known to such officer and
the nature and status thereof.
In addition, the Master Servicer shall enforce each Servicer's
obligation under the related Servicing
Agreement to provide a similar statement
to the Securities Administrator relating to
compliance with the related
Servicing Agreement.
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The Master Servicer shall enforce each Servicer's obligation
under
the related Servicing Agreement to provide
a report to the Securities
Administrator, as required to be provided
each year pursuant to each Servicing
Agreement, prepared by a firm of
independent public accountants (who may also
render other services to such Servicer or
any affiliate thereof) which is a
member of the American Institute of
Certified Public Accountants to the effect
that such firm has, with respect to such
Servicer's overall servicing
operations, examined such operations in
accordance with the requirements of the
Uniform Single Attestation Program for
Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Section 3.22 Advances.
The Master Servicer shall enforce the obligations of each
Servicer
to make Periodic Advances in accordance
with the applicable Servicing Agreement.
A Servicer shall be entitled to be
reimbursed from the applicable Servicer
Custodial Account for all Advances of its
own funds made pursuant to the related
Servicing Agreement. Based upon information
set forth in the servicer reports,
the Master Servicer shall inform the
Securities Administrator of the amount of
the Periodic Advance to be made by a
Servicer on each Servicer Advance Date no
later than the related Servicer Remittance
Date. If a Servicer fails to make any
required Periodic Advance pursuant to the
related Servicing Agreement, the
Master Servicer shall (i) unless the Master
Servicer determines that such
Periodic Advance would not be recoverable
in its good faith business judgment,
make such Periodic Advance not later than
the Business Day preceding the related
Distribution Date and (ii) to the extent
such failure leads to the termination
of the Servicer and until such time as a
successor Servicer is appointed,
continue to make Periodic Advances required
pursuant to the related Servicing
Agreement for any Distribution Date, within
the same time frame set forth in (i)
above, unless the Master Servicer
determines (to the extent provided in the
related Servicing Agreement) that such
Periodic Advance would not be
recoverable; provided that if the Servicer
that fails to make such Periodic
Advance is Wells Fargo Bank, the Trustee
shall have such obligation to make such
Periodic Advance.
Section 3.23 Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and the Master Servicer shall
reasonably cooperate with the Depositor in
connection with the Trust's
satisfying its reporting requirements under
the Exchange Act. Without limiting
the generality of the foregoing, the
Securities Administrator shall prepare on
behalf of the Trust any monthly Current
Reports on Form 8-K (each, a "Monthly
Form 8-K") and Annual Reports on Form 10-K
(each, a "Form 10-K") customary for
similar securities as required by the
Exchange Act and the rules and regulations
of the Securities and Exchange Commission
thereunder, and the Securities
Administrator shall sign and file (via the
Securities and Exchange Commission's
Electronic Data Gathering and Retrieval
System) such Forms (other than any
Annual Report on Form 10-K, which shall be
signed by the Master Servicer) on
behalf of the Trust.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each
Distribution Date, including a copy of
the monthly statement to Certificateholders
delivered pursuant to Section
5.04(b) (each, a "Distribution Date
Statement") for such Distribution Date as an
exhibit thereto. On or prior to March 30th
of each year (or such earlier date as
may be required by the Exchange Act and the
rules and regulations of the
Securities and Exchange Commission),
commencing in the calendar year following
the date of this Agreement, the Securities
Administrator shall file a Form 10-K,
in substance as required by applicable law
or applicable Securities and Exchange
Commission staff's interpretations. Such
Form 10-K shall include as exhibits the
Master Servicer's and each Servicer's
annual statement of compliance described
under Section 3.20 and the accountant's
report referenced under Section 3.21, in
each case, to the extent they have been
timely delivered to the Securities
Administrator. If they are not so timely
delivered, the Securities Administrator
shall file an amended Form 10-K including
such documents as exhibits reasonably
promptly after they are delivered to the
Securities Administrator. The
Securities Administrator shall have no
liability with respect to any failure to
properly prepare or file such periodic
reports resulting from or relating to the
Securities Administrator's inability or
failure to obtain any information not
resulting from its own negligence, willful
misconduct or bad faith. The Form
10-K shall also include a certification in
the form attached hereto as Exhibit O
(the "Certification"), which shall be
signed by a senior officer of the Master
Servicer in charge of the servicing
functions. The Master Servicer shall deliver
the Certification to the Securities
Administrator three (3) Business Days prior
to the latest date on which the Form 10-K
may be timely filed. The Securities
Administrator, the Depositor and the Master
Servicer shall reasonably cooperate
to enable the Securities and Exchange
Commission requirements with respect to
the Trust to be met in the event that the
Securities and Exchange Commission
issues additional interpretive guidelines
or promulgates rules or regulations,
or in the event of any other change of law
that would require reporting
arrangements or the allocation of
responsibilities with respect thereto, as
described in this Section 3.23, to be
conducted or allocated in a different
manner.
(c) Prior to the latest date on which the Form 10-K may be
timely
filed each year, the Securities
Administrator shall sign and deliver to the
Master Servicer a certification (in the
form attached hereto as Exhibit P) for
the benefit of the Master Servicer and its
officers, directors and affiliates
(provided, however, that the Securities
Administrator shall not undertake an
analysis of the accountant's report
attached as an exhibit to the Form 10-K). In
addition, the Securities Administrator
shall indemnify and hold harmless the
Master Servicer, each person, if any, who
"controls" the Master Servicer within
the meaning of the 1933 Act, as amended and
their respective officers,
directors, agents and affiliates
(collectively, the "Master Servicer Indemnified
Parties") from and against any losses,
damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and
related costs, judgments and other costs
and expenses arising out of or based upon
any inaccuracy in the certification
provided by the Securities Administrator
pursuant to this Section 3.23(c), any
breach by the Securities Administrator or
any of its officers, directors, agents
or affiliates of its obligations under this
Section 3.23(c) or any material
misstatements or omission contained in the
certification delivered pursuant to
this Section 3.23(c) or the Securities
Administrator's negligence, bad faith or
willful misconduct in connection therewith.
If the indemnification provided for
herein is unavailable or insufficient to
hold harmless the Master Servicer
Indemnified Parties, then the Securities
Administrator agrees that it shall
contribute to the amount paid or payable by
such Master Servicer Indemnified
Parties as a result of the losses, claims,
damages or liabilities of such Master
Servicer Indemnified Parties in such
proportion as is appropriate to reflect the
relative fault of such Master Servicer
Indemnified Parties on the one hand and
the Securities Administrator on the other
in connection with a breach of the
Securities Administrator's obligations
under this Section 3.23(c), any material
misstatement or omission contained in the
certification delivered pursuant to
this Section 3.23(c) or the Securities
Administrator's negligence, bad faith or
willful misconduct in connection therewith.
The Master Servicer hereby
acknowledges and agrees that the Depositor
and the Securities Administrator are
relying on the Master Servicer's
performance of its obligations under Sections
3.20 and 3.21 in order to perform their
respective obligations under this
Section 3.23.
(d) Prior to the latest date on which the Form 10-K may be
timely
filed each year, the Master Servicer shall
enforce the obligation of each
Servicer to provide the certification
required pursuant to each of the Servicing
Agreements.
(e) Upon any filing with the Securities and Exchange Commission,
the
Securities Administrator shall promptly
deliver to the Depositor a copy of any
such executed report, statement or
information.
(f) The obligations set forth in paragraphs (a) through (e) of
this
Section shall only apply with respect to
periods for which the Securities
Administrator is obligated to file reports
on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. Upon request
of the Depositor, the Securities
Administrator shall prepare, execute and
file with the Securities and Exchange
Commission a Form 15 Suspension
Notification with respect to the Trust.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 18th
calendar day of such month (or if such day
is not a Business Day, the following
Business Day, the Master Servicer shall
deliver to the Securities Administrator,
a Master Servicer's Certificate (in
substance and format mutually acceptable to
the Master Servicer and the Securities
Administrator) certified by a Master
Servicing Officer setting forth the
information necessary in order for the
Securities Administrator to perform its
obligations under this Agreement. The
Securities Administrator may conclusively
rely upon the information contained in
a Master Servicer's Certificate for all
purposes hereunder and shall have no
duty to verify or re-compute any of the
information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based
solely
on the information in the Master Servicer's
Certificate, the Securities
Administrator shall distribute out of the
Certificate Account (to the extent
funds are available therein) to each
Certificateholder of record on the related
Record Date (other than as provided in
Section 10.01 respecting the final
distribution) (a) by check mailed to such
Certificateholder entitled to receive
a distribution on such Distribution Date at
the address appearing in the
Certificate Register, or (b) upon written
request by the Holder of a Certificate
(other than a Residual Certificate), by
wire transfer or by such other means of
payment as such Certificateholder and the
Securities Administrator shall agree
upon, such Certificateholder's Percentage
Interest in the amount to which the
related Class of Certificates is entitled
in accordance with the priorities set
forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor,
the
Master Servicer, the Securities
Administrator or the Trustee shall in any way be
responsible or liable to Holders of any
Class of Certificates in respect of
amounts properly previously distributed on
any such Class.
Amounts distributed with respect to any Class of Certificates
shall
be applied first to the distribution of
interest thereon and then to principal
thereon.
Section 5.02 Priorities of Distributions.
(a) On each Distribution Date, based solely on the information
contained in the Master Servicer's
Certificate, the Securities Administrator
shall withdraw from the Certificate Account
(to the extent funds are available
therein) (1) to the extent not previously
paid, the amounts payable to the
Securities Administrator and the Trustee
pursuant to Sections 3.12(a)(ii) and
shall pay such funds to itself and the
Trustee, as applicable, and (2) the Pool
Distribution Amount (after the payment of
the Servicing Fees and Securities
Administrator Fees for such Distribution
Date and expenses and indemnities
reimbursable pursuant to this Agreement, in
each case to the extent not
previously retained by or distributed to a
Servicer, the Securities
Administrator, the Master Servicer or the
Trustee), in an amount as specified in
written notice received by the Securities
Administrator from the Master Servicer
no later than the Business Day following
the related Determination Date, and
shall apply such funds first, to
distributions in respect of the Uncertificated
Lower-Tier Interests as specified in this
Section 5.02(a) as a deemed deposit in
the Upper-Tier Certificate Sub-Account and
to the Class 1-A-R and Class 1-A-LR
Certificates and then to distributions on
the Certificates (other than the Class
1-A-R and Class 1-A-LR Certificates).
Distributions shall be made on the
Certificates in the following order of
priority and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class
30-PO
Certificates), an amount allocable to interest equal to the
Interest
Distribution Amount for such Class and any shortfall being
allocated among
such
Classes in proportion to the amount of the Interest
Distribution
Amount
that would have been distributed in the absence of such
shortfall;
(ii) concurrently to the Senior Certificates (other than the
Class
30-PO Certificates)
and the Class 30-PO Certificates, pro rata, based on
their
respective Senior Principal Distribution Amount and PO
Principal
Amount,
(A) to the Senior Certificates (other than the Class 30-PO
Certificates) in an aggregate amount up to the Senior Principal
Distribution Amount, such distribution to be allocated among such
Classes
in
accordance with Section 5.02(b) and (B) to the Class 30-PO
Certificates
in an
aggregate amount up to the PO Principal Amount;
(iii) to the Class 30-PO Certificates, any Class PO Deferred
Amount
(after
giving effect to the distribution to the Class 30-PO
Certificates
of the
Class PO Recovery), up to the Subordinate Principal
Distribution
Amount for
such Distribution Date from amounts otherwise distributable
first to
the Class B-6, pursuant to clause (iv)(L) below, second to the
Class B-5
Certificates, pursuant to clause (iv)(J) below, third to the
Class B-4
Certificates, pursuant to clause (iv)(H) below, fourth to the
Class B-3
Certificates, pursuant to clause (iv)(F) below, fifth to the
Class B-2
Certificates, pursuant to clause (iv)(D) below and finally to
the Class
B-1 Certificates, pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to
paragraph
(d) below,
in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(G) to the Class
B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date
less any amount used to pay the Class PO Deferred Amounts
pursuant
to clause (iii) above until the Class Certificate Balance
thereof
has been reduced to zero; and
(v) to the Holder of the Class 1-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate
Sub-Account and to the Holder of the
Class 1-A-LR Certificate, any remaining
Pool Distribution Amounts.
No Class of Certificates will be entitled to any distributions
with
respect to the amount payable pursuant to
clause (ii) of the definition of
"Interest Distribution Amount" after its
Class Certificate Balance or Notional
Amount has been reduced to zero.
On any Distribution Date, amounts distributed in respect of Class
PO
Deferred Amounts (including the
distribution of the Class PO Recoveries) will
not reduce the Class Certificate Balance of
the Class 30-PO Certificates.
All distributions in respect of the Interest Distribution Amount
for
a Class will be applied first with respect
to the amount payable pursuant to
clause (i) of the definition of "Interest
Distribution Amount," and second with
respect to the amount payable pursuant to
clause (ii) of such definition.
On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amount
sequentially to the Classes of Certificates
then outstanding which bore the loss to
which such Reimbursement amount relates
beginning with the most senior of such
Classes of Certificates, up to, with
respect to each Class, the amount of loss
borne by such Class. Any Reimbursement
Amount remaining after the application
described in the preceding sentence shall
be included in the Pool Distribution
Amount. On each Distribution Date, the
Securities Administrator shall distribute
any Class PO Recovery to the Holders
of the Class 30-PO Certificates.
In the
event that on any Distribution Date, the Subordinate
Principal Distribution Amount is
insufficient to reduce the Class PO Deferred
Amounts for the Class 30-PO Certificates to
zero, the amount that is available
shall be distributed to such Class.
Each Uncertificated Lower-Tier Interest (other than the Class
1-A-LIO Interest) shall receive
distributions in respect of principal in an
amount equal to the amount of principal
distributed to its respective
Corresponding Upper-Tier Class or Classes
as provided herein. On each
Distribution Date, each Uncertificated
Lower-Tier Interest (other than the Class
1-A-LPO Interest) shall receive
distributions in respect of interest in an
amount equal to the Interest Distribution
Amount in respect of its Corresponding
Upper-Tier Class or Classes to the extent
actually distributed thereon. With
respect to any Distribution Date, the
principal portion of Realized Losses and
recoveries attributable to previously
allocated Realized Losses allocated
pursuant to this Section 5.02(a) will be
allocated to each Uncertificated
Lower-Tier Interest in an amount equal to
the amount allocated to its respective
Corresponding Upper-Tier Class or Classes
as provided above, and the interest
portion of Realized Losses allocated
pursuant to this Section 5.02(a) will be
allocated to each Uncertificated Lower-Tier
Interest in the same relative
proportions as interest is allocated to
such Uncertificated Lower-Tier Interest.
As of any date, the principal balance or notional amount of
each
Uncertificated Lower-Tier Interest equals
the aggregate of the Class Certificate
Balances or Notional Amounts of the
respective Corresponding Upper-Tier Class or
Classes. The initial principal balance or
notional amount of each Uncertificated
Lower-Tier Interest equals the aggregate of
the Initial Class Certificate
Balances or Initial Notional Amounts of the
respective Corresponding Upper-Tier
Class or Classes.
The pass-through rate with respect to the Class 1-A-L1
Interest,
Class 1-A-L3 Interest, Class 1-A-L13
Interest, Class 1-A-L16 Interest, Class
1-A-LUR Interest, Class B-L1 Interest,
Class B-L2 Interest, Class B-L3 Interest,
Class B-L4 Interest, Class B-L5 Interest
and Class B-L6 Interest shall be 5.500%
per annum. The pass-through rate with
respect to the Class 1-A-L19 Interest
shall be 5.250% per annum. The pass-through
rate with respect to the Class
1-A-L20 Interest shall be 8.000% per annum.
The pass-through rate with respect
to the Class 1-A-LIO Interest shall be a
per annum rate equal to the
Pass-Through Rate of the Class 30-IO
Certificates. The Class 1-A-LPO Interest is
a principal-only interest and is not
entitled to distributions of interest.
Any Non-Supported Interest Shortfalls will be allocated to each
Uncertificated Lower-Tier Interest in the
same relative proportions as interest
is allocated to such Uncertificated
Lower-Tier Interest. Amounts distributed to
the Uncertificated Lower-Tier Interests in
respect of principal and interest
with respect to any Distribution Date are
referred to herein collectively as the
"Lower-Tier Distribution Amount."
(b) On each Distribution Date prior to the Senior Credit
Support
Depletion
Date, the amount distributable to the Senior Certificates
pursuant to
Section 5.02(a)(ii)(A) for such Distribution Date, will be
distributed, sequentially, as follows:
first, concurrently to the Class 1-A-R and Class 1-A-LR
Certificates, pro rata, until their Class
Certificate Balances have been reduced
to zero;
second, to the Class 1-A-1 Certificates, up to the Priority
Amount
for such Distribution Date, until their
Class Certificate Balance has been
reduced to zero;
third, concurrently, as follows:
(A)
29.9761334503%, sequentially, as follows:
(1) concurrently, to the Class 1-A-19 and Class 1-A-20
Certificates, pro rata, until their Class Certificate
Balances have been reduced to zero; and
(2) concurrently, as follows:
(a) 66.6666666667%, sequentially, to the Class 1-A-9,
Class 1-A-10, Class 1-A-11 and Class 1-A-12 Certificates,
in that order, until their Class Certificate Balances have
been reduced to zero; and
(b) 33.3333333333%, sequentially, as follows:
(i) concurrently, to the Class 1-A-13 and Class
1-A-14 Certificates, pro rata, until their Class
Certificate Balances have been reduced to zero; and
(ii) to the Class 1-A-15 Certificates, until their
Class Certificate Balance has been reduced to zero.
(B) 70.0238665497%, sequentially, as follows:
(1) to the Class 1-A-3 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(2) concurrently, as follows:
(a) 60.4930467762%, concurrently, to the Class
1-A-16 and Class 1-A-18 Certificates, pro rata,
until their Class Certificate Balances have been
reduced to zero; and
(b) 39.5069532238%, sequentially, to the Class
1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7 and
Class 1-A-8
Certificates, in that order, until
their Class Certificate Balances have been reduced
to zero.
fourth, to the Class 1-A-1 Certificates, until their Class
Certificate Balance has been reduced to
zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the
allocation and priority set forth above, the
portion of the Pool Distribution Amount
available to be distributed as principal
of the Senior Certificates shall be
distributed concurrently, as principal, on
such Classes, pro rata, on the basis of
their respective Class Certificate
Balances, until the Class Certificate
Balances thereof are reduced to zero.
The Class 1-A-2, Class 1-A-17, Class 1-A-21 and Class 30-IO
Certificates are Interest-Only Certificates
and are not entitled to
distributions in respect of principal.
(c) On each Distribution Date, Accrued Certificate Interest for
each
Class of Certificates for such Distribution
Date (other than the Class 30-PO
Certificates) shall be reduced by such
Class' pro rata share, based on such
Class' Interest Distribution Amount for
such Distribution Date, without taking
into account the allocation made by this
Section 5.02(c), of (A) Non-Supported
Interest Shortfalls, (B) on and after the
Senior Credit Support Depletion Date,
any other Realized Loss on the Mortgage
Loans allocable to interest and (C)
Relief Act Reductions incurred on the
Mortgage Loans during the calendar month
preceding the month of such Distribution
Date.
(d) Notwithstanding the priority and allocation contained in
Section
5.02(a)(iv), if with respect to any Class
of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the
Class Certificate Balances
immediately prior to such Distribution Date
of all Classes of Subordinate
Certificates which have a higher numerical
Class designation than such Class,
divided by (ii) the Pool Stated Principal
Balance (Non-PO Portion) immediately
prior to such Distribution Date (the
"Fractional Interest") is less than the
Original Fractional Interest for such
Class, no distribution of principal will
be made to any Classes of Subordinate
Certificates junior to such Class (the
"Restricted Classes") and the Class
Certificate Balances of the Restricted
Classes will not be used in determining the
Pro Rata Share for the Subordinate
Certificates that are not Restricted
Classes. If the aggregate Class Certificate
Balances of the Subordinate Certificates
that are not Restricted Classes is
reduced to zero, notwithstanding the
previous sentence, any funds remaining will
be distributed sequentially to the
Restricted Classes in order of their
respective numerical Class designations
(beginning with the Class of Restricted
Certificates then outstanding with the
lowest numerical Class designation).
Section 5.03 Allocation of Losses.
(a) On or prior to each Determination Date, the Master Servicer
shall inform the Securities Administrator
in writing with respect to each
Mortgage Loan: (1) whether any Realized
Loss is a Deficient Valuation or a Debt
Service Reduction, (2) of the amount of
such loss or Deficient Valuation, or of
the terms of such Debt Service Reduction
and (3) of the total amount of Realized
Losses. Based on such information, the
Securities Administrator shall determine
the total amount of Realized Losses with
respect to the related Distribution
Date. Realized Losses shall be allocated to
the Certificates by a reduction in
the Class Certificate Balance of the
designated Classes pursuant to the
operation of Section 5.03(b).
(b) The Class Certificate Balance of the Class 30-PO
Certificates
shall be reduced on each Distribution Date
by the amount, if any, by which the
Class 30-PO Certificates (after giving
effect to the amounts to be distributed
as a distribution of principal on such
Distribution Date) exceeds the Adjusted
Pool Amount (PO Portion) for such
Distribution Date. The Class Certificate
Balance of the Class of Subordinate
Certificates then outstanding with the
highest numerical Class designation shall
be reduced or increased on each
Distribution Date by the amount, if any,
necessary such that the aggregate of
the Class Certificate Balances of all
outstanding Classes (after giving effect
to the amount to be distributed as a
distribution of principal and the
allocation of Class PO Deferred Amounts on
such Distribution Date) equals the
Adjusted Pool Amount (Non-PO Portion) for
such Distribution Date.
After the applicable Senior Credit Support Depletion Date, the
Class
Certificate Balances of the Senior
Certificates in the aggregate shall be
reduced or increased on each Distribution
Date by the amount, if any, necessary
such that the aggregate of the Class
Certificate Balances of all outstanding
Classes of Senior Certificates (after
giving effect to the amount to be
distributed as a distribution of principal
on such Distribution Date) equals the
Adjusted Pool Amount (Non-PO Portion) for
such Distribution Date.
Any such reduction or increase shall be allocated among the
Senior
Certificates based on the Class Certificate
Balances immediately prior to such
Distribution Date.
(c) Any reduction or increase in the Class Certificate Balance of
a
Class of Certificates pursuant to Section
5.03(b) above shall be allocated among
the Certificates of such Class in
proportion to their respective Percentage
Interests.
(d) The calculation of the amount to be distributed as principal
to
any Class of Subordinate Certificates with
respect to a Distribution Date (the
"Calculated Principal Distribution") shall
be made prior to the allocation of
any Realized Losses for such Distribution
Date; provided, however, the actual
payment of principal to the Classes of
Certificates shall be made subsequent to
the allocation of Realized Losses for such
Distribution Date. In the event that
after the allocation of Realized Losses for
a Distribution Date, the Calculated
Principal Distribution for a Class of
Subordinate Certificates is greater than
the Class Certificate Balance of such
Class, the excess shall be distributed
first, sequentially, to the Classes of
Subordinate Certificates then outstanding
(beginning with the Class of Subordinate
Certificates then outstanding with the
lowest numerical designation) until the
respective Class Certificate Balance of
each such Class is reduced to zero and then
to the Senior Certificates, pro
rata, in accordance with the priorities set
forth in Section 5.02.
(e) With respect to any Distribution Date, Realized Losses
allocated
pursuant to this Section 5.03 will be
allocated to each Uncertificated
Lower-Tier Interest as described in Section
5.02(a).
(f) Notwithstanding any other provision of this Section 5.03,
no
Class Certificate Balance of a Class will
be increased on any Distribution Date
such that the Class Certificate Balance of
such Class exceeds its Initial Class
Certificate Balance less all distributions
of principal previously distributed
in respect of such Class on prior
Distribution Dates (excluding in the case of
any Class of Class B Certificates any
principal otherwise payable to such Class
B Certificates but used to pay any Class PO
Deferred Amount).
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon
the
information provided to the Securities
Administrator on the Master Servicer's
Certificates delivered to the Securities
Administrator pursuant to Section 4.01,
the Securities Administrator shall
determine the following information with
respect to such Distribution Date:
(i) the amount allocable to principal, separately identifying
the
aggregate
amount of any Principal Prepayments and Liquidation Proceeds
included
therein;
(ii) the amount allocable to interest, any Class Unpaid
Interest
Shortfall
included in such distribution and any remaining Class Unpaid
Interest
Shortfall after giving effect to such distribution; (iii) if
the
distribution to the Holders of such Class of Certificates is less
than the
full
amount that would be distributable to such Holders if there
were
sufficient
funds available therefor, the amount of the shortfall and the
allocation
thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of
Certificates
after
giving effect to the distribution of principal on such
Distribution
Date;
(v) the Pool Stated Principal Balance for the following
Distribution
Date;
(vi) the Senior Percentage and the Subordinate Percentage for
the
following
Distribution Date;
(vii) the amount of the Servicing Fee paid to or retained by
each
Servicer
with respect to such Distribution Date;
(viii) the amount of the Master Servicing Fee paid to the
Master
Servicer
with respect to such Distribution Date;
(ix) the Pass-Through Rate for each such Class of Certificates
with
respect to
such Distribution Date;
(x) the amount of Periodic Advances included in the distribution
on
such
Distribution Date and the aggregate amount of Periodic Advances
outstanding as of the close of business on such Distribution
Date;
(xi) the number and aggregate principal amounts of Mortgage
Loans
(A)
delinquent (exclusive of Mortgage Loans in foreclosure or
bankruptcy)
(1) 1 to
30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more
days, (B)
in foreclosure, as of the close of business on the last day of
the
calendar month preceding such Distribution Date and (c) in
bankruptcy,
as of the
close of business on the last day of the calendar month
preceding
such Distribution Date;
(xii) with respect to any Mortgage Loan that became an REO
Property
during the
preceding calendar month, the loan number and Stated Principal
Balance of
such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date
of
acquisition thereof;
(xiii) the total number and principal balance of any REO
Properties
(and
market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiv) the Senior Prepayment Percentage and the Subordinate
Prepayment
Percentage for the following Distribution Date;
(xv) the aggregate amount of Realized Losses incurred during
the
preceding
calendar month and for any Class PO Deferred Amounts for such
Distribution Date;
(xvi) the Class 1-A-2 Notional Amount, Class 1-A-17 Notional
Amount,
Class
1-A-21 Notional Amount and Class 30-IO Notional Amount for such
Distribution Date; and
(xvii) the amount of total Recoveries, the Class PO Recovery and
the
Non-PO
Recovery and the amount of the Class PO Recovery allocated to
the
Class
30-PO Certificates.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information
supplied to it on the Master Servicer's
Certificates, shall make available to each
Holder of a Certificate, each Rating
Agency and the Master Servicer a statement
setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i)
and
(ii) of Section 5.04(a), the amounts shall
be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish to each Financial
Market Service, in electronic or such
other format and media mutually agreed upon
by the Securities Administrator, the
Financial Market Service and the Depositor,
the information contained in the
statement described in Section 5.04(a) for
such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any
additional files containing the same
information in an alternative format)
available each month to
Certificateholders, and other parties to
this Agreement via the Securities
Administrator's Internet website. The
Securities Administrator's Internet
website shall initially be located at
"www.ctslink.com." Assistance in using the
website can be obtained by calling the
Securities Administrator's customer
service desk at (301) 815-6600. Parties
that are unable to use the website are
entitled to have a paper copy mailed to
them via first class mail by calling the
customer service desk and indicating such.
The Securities Administrator shall
have the right to change the way the
monthly statements to Certificateholders
are distributed in order to make such
distribution more convenient and/or more
accessible to the above parties and the
Securities Administrator shall provide
timely and adequate notification to all
above parties regarding any such
changes.
Within a reasonable period of time after the end of each
calendar
year, the Securities Administrator shall
furnish to each Person who at any time
during the calendar year was the Holder of
a Certificate, if requested in
writing by such Person, a statement
containing the information set forth in
clauses (i) and (ii) of Section 5.04(a), in
each case aggregated for such
calendar year or applicable portion thereof
during which such Person was a
Certificateholder. Such obligation of the
Securities Administrator shall be
deemed to have been satisfied to the extent
that substantially comparable
information shall be provided by the
Securities Administrator pursuant to any
requirements of the Code as from time to
time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the
Securities Administrator is required
by this Agreement or the Code, Treasury
Regulations or REMIC Provisions to
deliver to the Holders of Certificates, and
the Securities Administrator shall
prepare and provide to the
Certificateholders (by mail, telephone, or
publication as may be permitted by
applicable Treasury Regulations) such other
reasonable information as the Securities
Administrator deems necessary or
appropriate or is required by the Code,
Treasury Regulations, and the REMIC
Provisions including, but not limited to,
(i) information to be reported to the
Holders of the Residual Certificates for
quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded
to the Holders of the Residual
Certificates by the Securities
Administrator), (ii) information to be provided
to the Holders of Certificates with respect
to amounts which should be included
as interest and original issue discount in
such Holders' gross income and (iii)
information to be provided to all Holders
of Certificates setting forth the
percentage of each REMIC's assets,
determined in accordance with Treasury
Regulations using a convention, not
inconsistent with Treasury Regulations,
selected by the Securities Administrator in
its absolute discretion, that
constitute real estate assets under Section
856 of the Code, and assets
described in Section 7701(a)(19)(C) of the
Code; provided, however, that in
setting forth the percentage of such assets
of each REMIC, nothing contained in
this Agreement, including without
limitation Section 7.03 hereof, shall be
interpreted to require the Securities
Administrator periodically to appraise the
fair market values of the assets of the
Trust Estate or to indemnify the Trust
Estate or any Certificateholders from any
adverse federal, state or local tax
consequences associated with a change
subsequently required to be made in the
Depositor's initial good faith
determinations of such fair market values (if
subsequent determinations are required
pursuant to the REMIC Provisions) made
from time to time.
Section 5.05 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a
calendar year taxable year and shall
maintain its books on the accrual method of
accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, the Trustee shall timely sign,
and the Securities Administrator shall
file or cause to be filed with the Internal
Revenue Service and applicable state
or local tax authorities income tax
information returns for each taxable year
with respect to each REMIC containing such
information at the times and in the
manner as may be required by the Code, the
Treasury Regulations or state or
local tax laws, regulations, or rules, and
shall furnish or cause to be
furnished to each REMIC and the
Certificateholders the schedules, statements or
information at such times and in such
manner as may be required thereby. Within
30 days of the Closing Date, the Securities
Administrator shall obtain a
taxpayer identification number on Form SS-4
or as otherwise permitted by the
Internal Revenue Service, and shall furnish
or cause to be furnished to the
Internal Revenue Service, on Form 8811 or
as otherwise required by the Code or
the Treasury Regulations, the
