================================================================================
BANC OF AMERICA FUNDING CORPORATION,
as Depositor,
WELLS FARGO BANK, N.A.,
as a Master Servicer and Securities Administrator,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated March 30, 2005
-----------------------
Mortgage Pass-Through Certificates
Series 2005-2
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS...................................................6
Section 1.01
Defined Terms.................................................6
Section 1.02
Interest Calculations........................................38
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE
OF CERTIFICATES............................................38
Section 2.01
Conveyance of Mortgage Loans.................................38
Section 2.02
Acceptance by the Trustee or Custodian of
the Mortgage Loans.........................................43
Section 2.03
Representations, Warranties and Covenants of
the Master Servicer........................................48
Section 2.04
Representations and Warranties as to the Mortgage Loans......49
Section 2.05
Designation of Interests in the REMICs.......................49
Section 2.06
Designation of Start-up Day..................................49
Section 2.07
REMIC Certificate Maturity Date..............................50
Section 2.08
Execution and Delivery of Certificates.......................50
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS........50
Section 3.01
Master Servicing of the Mortgage Loans.......................50
Section 3.02
Monitoring of Servicers......................................51
Section 3.03
Fidelity Bond; Errors and Omissions Insurance................52
Section 3.04
Access to Certain Documentation..............................52
Section 3.05
Maintenance of Primary Mortgage Insurance Policy; Claims.....53
Section 3.06
Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer..........53
Section 3.07
Trustee to Act as Master Servicer............................53
Section 3.08
Servicer Custodial Accounts and Escrow Accounts..............54
Section 3.09
Collection of Mortgage Loan Payments; Master Servicer
Custodial Accounts and Certificate Account.................55
Section 3.10
Access to Certain Documentation and Information
Regarding the Mortgage Loans...............................57
Section 3.11
Permitted Withdrawals from the Certificate Account and
the Master Servicer Custodial Account......................57
Section 3.12
Maintenance of Hazard Insurance and Other Insurance..........58
Section 3.13
Presentment of Claims and Collection of Proceeds.............59
Section 3.14
Enforcement of Due-On-Sale Clauses; Assumption Agreements....59
Section 3.15
Realization Upon Defaulted Mortgage Loans; REO Property......59
Section 3.16
Trustee to Cooperate; Release of Mortgage Files..............61
Section 3.17
Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee.................62
Section 3.18
Master Servicer Compensation.................................63
Section 3.19
Annual Statement as to Compliance............................63
Section 3.20
Annual Independent Public Accountants' Servicing
Statement; Financial Statements............................63
-i-
Section 3.21
Advances.....................................................64
Section 3.22
Reports to the Securities and Exchange Commission............64
ARTICLE IV
MASTER SERVICER'S CERTIFICATE................................66
Section 4.01
Master Servicer's Certificate................................66
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION.......................................66
Section 5.01
Distributions................................................66
Section 5.02
Priorities of Distributions..................................67
Section 5.03
Allocation of Losses.........................................73
Section 5.04
Statements to Certificateholders.............................75
Section 5.05
Tax Returns and Reports to Certificateholders................78
Section 5.06
Tax Matters Person...........................................79
Section 5.07
Rights of the Tax Matters Person in Respect of
the Securities Administrator...............................79
Section 5.08
REMIC Related Covenants......................................79
Section 5.09
Master Servicer, Securities Administrator and
Trustee Indemnification....................................80
ARTICLE VI
THE CERTIFICATES.............................................81
Section 6.01
The Certificates.............................................81
Section 6.02
Registration of Transfer and Exchange of Certificates........82
Section 6.03
Mutilated, Destroyed, Lost or Stolen Certificates............86
Section 6.04
Persons Deemed Owners........................................86
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER........................87
Section 7.01
Respective Liabilities of the Depositor and
the Master Servicer........................................87
Section 7.02
Merger or Consolidation of the Depositor or
the Master Servicer........................................87
Section 7.03
Limitation on Liability of the Depositor,
the Master Servicer and Others.............................87
Section 7.04
Depositor and Master Servicer Not to Resign..................88
ARTICLE VIII
DEFAULT......................................................88
Section 8.01
Events of Default............................................88
Section 8.02
Remedies of Trustee..........................................90
Section 8.03
Directions by Certificateholders and Duties of
Trustee During Event of Default............................90
Section 8.04
Action upon Certain Failures of the Master Servicer and
upon Event of Default......................................90
Section 8.05
Trustee to Act; Appointment of Successor.....................91
Section 8.06
Notification to Certificateholders...........................92
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR.................92
Section 9.01
Duties of Trustee and Securities Administrator...............92
Section 9.02
Certain Matters Affecting the Trustee and
the Securities Administrator...............................94
-ii-
Section 9.03
Neither Trustee nor Securities Administrator Liable
for Certificates or Mortgage Loans.........................95
Section 9.04
Trustee and Securities Administrator May Own Certificates....96
Section 9.05
Eligibility Requirements for Trustee and
the Securities Administrator...............................96
Section 9.06
Resignation and Removal of Trustee and
the Securities Administrator...............................97
Section 9.07
Successor Trustee or Securities Administrator................98
Section 9.08
Merger or Consolidation of Trustee or
Securities Administrator...................................99
Section 9.09
Appointment of Co-Trustee or Separate Trustee................99
Section 9.10
Authenticating Agents.......................................100
Section 9.11
Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses...............................101
Section 9.12
Appointment of Custodian....................................102
Section 9.13
Paying Agents...............................................102
Section 9.14
Limitation of Liability.....................................103
Section 9.15
Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates........................103
Section 9.16
Suits for Enforcement.......................................103
Section 9.17
Waiver of Bond Requirement..................................103
Section 9.18
Waiver of Inventory, Accounting and Appraisal Requirement...103
ARTICLE X
TERMINATION.................................................104
Section 10.01
Termination upon Purchase or Liquidation of
All Mortgage Loans........................................104
Section 10.02
Additional Termination Requirements.........................106
ARTICLE XI
MISCELLANEOUS PROVISIONS....................................106
Section 11.01
Amendment...................................................106
Section 11.02
Recordation of Agreement; Counterparts......................108
Section 11.03
Limitation on Rights of Certificateholders..................108
Section 11.04
Governing Law...............................................109
Section 11.05
Notices.....................................................109
Section 11.06
Severability of Provisions..................................110
Section 11.07
Certificates Nonassessable and Fully Paid...................110
Section 11.08
Access to List of Certificateholders........................110
Section 11.09
Recharacterization..........................................110
-iii-
EXHIBITS
--------
Exhibit 1-A-1
Form of Face of Class 1-A-1 Certificate
Exhibit 1-A-2
Form of Face of Class 1-A-2 Certificate
Exhibit 1-A-3
Form of Face of Class 1-A-3 Certificate
Exhibit 1-A-4
Form of Face of Class 1-A-4 Certificate
Exhibit 1-A-5
Form of Face of Class 1-A-5 Certificate
Exhibit 1-A-6
Form of Face of Class 1-A-6 Certificate
Exhibit 1-A-7
Form of Face of Class 1-A-7 Certificate
Exhibit 1-A-8
Form of Face of Class 1-A-8 Certificate
Exhibit 1-A-9
Form of Face of Class 1-A-9 Certificate
Exhibit 1-A-10
Form of Face of Class 1-A-10 Certificate
Exhibit 1-A-11
Form of Face of Class 1-A-11 Certificate
Exhibit 1-A-12
Form of Face of Class 1-A-12 Certificate
Exhibit 1-A-13
Form of Face of Class 1-A-13 Certificate
Exhibit 1-A-14
Form of Face of Class 1-A-14 Certificate
Exhibit 1-A-15
Form of Face of Class 1-A-15 Certificate
Exhibit 1-A-16
Form of Face of Class 1-A-16 Certificate
Exhibit 1-A-17
Form of Face of Class 1-A-17 Certificate
Exhibit 1-A-18
Form of Face of Class 1-A-18 Certificate
Exhibit 1-A-19
Form of Face of Class 1-A-19 Certificate
Exhibit 1-A-20
Form of Face of Class 1-A-20 Certificate
Exhibit 2-A-1
Form of Face of Class 2-A-1 Certificate
Exhibit 2-A-2
Form of Face of Class 2-A-2 Certificate
Exhibit 2-A-3
Form of Face of Class 2-A-3 Certificate
Exhibit 2-A-4
Form of Face of Class 2-A-4 Certificate
Exhibit 2-A-5
Form of Face of Class 2-A-5 Certificate
Exhibit 1-A-R
Form of Face of Class 1-A-R Certificate
Exhibit 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........................C-1
Exhibit D-1
Loan Group 1 Mortgage Loan Schedule.....................D-1A-1
Exhibit D-2
Loan Group 2 Mortgage Loan Schedule.....................D-2A-1
Exhibit E
Request for Release of Documents...........................E-1
Exhibit F
Form of Certification of Establishment of Account..........F-1
Exhibit G-1
Form of Transferor's Certificate.........................G-1-1
Exhibit G-2A
Form 1 of Transferee's Certificate......................G-2A-1
Exhibit G-2B
Form 2 of Transferee's Certificate......................G-2B-1
-iv-
Exhibit H
Form of Transferee Representation Letter for ERISA
Restricted Certificates..................................H-1
Exhibit I
Form of Affidavit Regarding Transfer of
Residual Certificates....................................I-1
Exhibit J
List of Recordation States.................................J-1
Exhibit K
Form of Initial Certification..............................K-1
Exhibit L
Form of Final Certification................................L-1
Exhibit M
Form of Sarbanes-Oxley Certification.......................M-1
Exhibit N
Form of Securities Administrator's Certification...........N-1
Exhibit O
Excerpts from S&P's Levels(R) Glossary.....................O-1
-v-
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated March 30, 2005 is
hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as
depositor
(together with its permitted successors and assigns, the
"Depositor"), WELLS
FARGO BANK, N.A., as a master servicer (together with its permitted
successors
and assigns, in such capacity, the "Master Servicer") and as
securities
administrator (together with its permitted successors and assigns,
in such
capacity, 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 Representing Party, the Securities
Administrator and
the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust
Estate to the Trustee to create the Trust. As provided herein, the
Trustee will
make an election to treat the segregated pool of assets consisting
of the
Mortgage Loans and certain other related assets subject to this
Agreement as a
real estate investment conduit (a "REMIC") for federal income tax
purposes, and
such segregated pool of assets will be designated as the
"Lower-Tier REMIC." The
Uncertificated Lower-Tier Interests will represent the "regular
interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions. The
Class 1-A-LR
Certificate will represent the sole class of "residual interests"
in the
Lower-Tier REMIC for purposes of the REMIC Provisions. The Trustee
will make
another election to treat the Uncertificated Lower-Tier Interests
as another
REMIC for federal income tax purposes, and such segregated pool of
assets will
be designated as the "Upper-Tier REMIC." The Senior Certificates
(other than the
Class 30-IO, Class 30-PO, Class 1-A-LR and Class 1-A-R
Certificates) and the
Class B Certificates are referred to collectively as the "Regular
Certificates"
and shall constitute "regular interests" in the Upper-Tier REMIC
for purposes of
the REMIC Provisions. The Class 1-IO, Class 2-IO, Class 1-PO and
Class 2-PO
Components (collectively, the "Components") shall also constitute
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The
Class 30-IO and Class 30-PO Certificates will together represent
the undivided
ownership of the Class IO Components and the Class PO Components,
respectively.
The Class 1-A-R Certificate shall be the "residual interest" in the
Upper-Tier
REMIC for purposes of the REMIC Provisions. The "latest possible
maturity date"
for federal income tax purposes of all interests created hereby
will be the
REMIC Certificate Maturity Date.
1
LOWER-TIER REMIC
----------------
The following table sets forth the designation, the Lower-Tier
REMIC Rate
and the initial uncertificated principal balance or notional
balance of such
interest. None of the Uncertificated Lower-Tier Interests will be
certificated.
Uncertificated Lower-Tier
Interest or
Uncertificated
Initial
Corresponding Upper-Tier
Certificate Designation
Lower-Tier REMIC Rate
Uncertificated Balance
Class, Classes, or Component
-------------------------
---------------------
----------------------
----------------------------
LT1A1
5.625%
$24,405,000
Class 1-A-1, Class 1-A-13
LT1A2
5.500%
$46,305,000
Class 1-A-2
lt1a3
5.625%
$33,773,000
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-16, Class 1-A-19,
Class 1-A-20
lt1A11
5.500%
$10,000,000
Class 1-A-11
lt1A12
5.625%
$1,285,000
Class 1-A-12, Class 1-A-13
lt1A14
5.500%
$20,000,000
Class 1-A-14
lt1A15
5.500%
$833,000
Class 1-A-15
lt1A17
5.750%
$93,427,000
Class 1-A-17
lt1A18
5.500%
$16,289,000
Class 1-A-18
lt1aIO
(1)
(2)
Class 1-IO Component
lt1APO
(3)
(4)
Class 1-PO Component
lt1B
5.625%
$7,707,213
Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5,
Class B-6
LT2A1
5.750%
$9,250,000
Class 2-A-1
lt2A2
5.750%
$69,590,000
Class 2-A-2
lt2A3
5.500%
$4,000,000
Class 2-A-3
lt2A4
5.750%
$4,870,000
Class 2-A-4
lt2A5
6.000%
$4,000,000
Class 2-A-5
lt2aIO
(5)
(6)
Class 2-IO Component
lt2APO
(7)
(8)
Class 2-PO Component
lt2B
5.750%
$2,885,199
Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5,
Class B-6
LTAR
5.625
$50
Class 1-A-R
1-A-LR (9)
5.625
$50
N/A
2
(1) For each Distribution Date, the excess of the weighted average
of the Net
Mortgage Interest Rates of the Group 1 Premium Mortgage Loans over
5.625%.
(2) For each Distribution Date, a notional balance equal to the
aggregate
principal balance of the Group 1 Premium Mortgage Loans.
(3) The LT1APO Interest will not bear interest.
(4) For each Distribution Date, the principal balance in respect of
the Class
1-PO Component. The initial principal balance of the LT1APO
Interest will be
$2,878,577.
(5) For each Distribution Date, the excess of the weighted average
of the Net
Mortgage Interest Rates of the Group 2 Premium Mortgage Loans over
5.750%.
(6) For each Distribution Date, a notional balance equal to the
aggregate
principal balance of the Group 2 Premium Mortgage Loans.
(7) The LT2APO Interest will not bear interest.
(8) For each Distribution Date, the principal balance in respect of
the Class
2-PO Component. The initial principal balance of the LT2APO
Interest will be
$1,552,538.
(9) The Class 1-A-LR Certificate will not be an Uncertificated
Lower-Tier
Interest. The Class 1-A-LR Certificate will represent the residual
interest in
the Lower-Tier REMIC for purpose of the REMIC Provisions. The Class
1-A-LR
Certificate will not represent an interest in the Upper-Tier REMIC.
[Remainder of Page Intentionally Left Blank]
3
UPPER-TIER REMIC
----------------
The following table sets forth characteristics of the Certificates
and the
Components, together with the minimum denominations and integral
multiples in
excess thereof in which the Classes of Certificates shall be
issuable:
=============================================================================================================
Integral
Multiples
Initial Class Certificate
Pass-Through
Minimum
in Excess
Classes
Balance or Notional Amount
Rate
Denomination
of Minimum
-------------------------------------------------------------------------------------------------------------
Class 1-A-1
$24,405,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-2
$46,305,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-3
$2,017,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-4
$2,708,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-5
$2,014,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-6
$2,288,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-7
$2,444,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-8
$3,860,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-9
$3,206,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-10
$2,934,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-11
$10,000,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-12
$1,285,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-13
$583,863.00 (1)
5.50000%
$583,863
N/A
-------------------------------------------------------------------------------------------------------------
Class 1-A-14
$20,000,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-15
$833,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-16
$10,000,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-17
$93,427,000.00
5.75000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-18
$16,289,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-19
$2,302,000.00
6.00000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 1-A-20
$558,295.00 (2)
5.50000%
$558,295
N/A
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
Class 1-A-R
$50.00
5.62500%
$50
N/A
-------------------------------------------------------------------------------------------------------------
Class 1-A-LR (3)
$50.00
5.62500%
$50
N/A
-------------------------------------------------------------------------------------------------------------
Class 2-A-1
$9,250,000.00
5.75000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 2-A-2
$69,590,000.00
5.75000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 2-A-3
$4,000,000.00
5.50000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 2-A-4
$4,870,000.00
5.75000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 2-A-5
$4,000,000.00
6.00000%
$1,000
$1
-------------------------------------------------------------------------------------------------------------
Class 30-IO
(4)
(4)
$1,000,000
$1
-------------------------------------------------------------------------------------------------------------
Class 30-PO
(5)
(5)
$25,000
$1
-------------------------------------------------------------------------------------------------------------
Class B-1
$5,296,000.00
(6)
$25,000
$1
-------------------------------------------------------------------------------------------------------------
Class B-2
$1,765,000.00
(6)
$25,000
$1
-------------------------------------------------------------------------------------------------------------
Class B-3
$1,413,000.00
(6)
$25,000
$1
4
=============================================================================================================
Integral
Multiples
Initial Class Certificate
Pass-Through
Minimum
in Excess
Classes
Balance or Notional Amount
Rate
Denomination
of Minimum
-------------------------------------------------------------------------------------------------------------
Class B-4
$882,000.00
(6)
$25,000
$1
-------------------------------------------------------------------------------------------------------------
Class B-5
$706,000.00
(6)
$25,000
$1
-------------------------------------------------------------------------------------------------------------
Class B-6
$530,361.00
(6)
$25,000
$1
=============================================================================================================
=============================================================================================================
Integral
Pass-Through
Minimum
Multiples In
Components
Initial Component Balance
Rate
Denomination
Excess Of Minimum
-------------------------------------------------------------------------------------------------------------
Class 1-IO
$4,771,185.13 (7)
5.75000%
N/A
N/A
-------------------------------------------------------------------------------------------------------------
Class 2-IO
$1,709,241.44 (7)
5.75000%
N/A
N/A
-------------------------------------------------------------------------------------------------------------
Class 1-PO
$2,878,577.24
(8)
N/A
N/A
-------------------------------------------------------------------------------------------------------------
Class 2-PO
$1,552,538.64
(8)
N/A
N/A
=============================================================================================================
---------------
(1) The Class 1-A-13 Certificates are Interest Only Certificates,
have no Class
Certificate Balance and will not be entitled to distributions in
respect of
principal. Interest will accrue on the Class 1-A-13 Certificates
based on its
Notional Amount, which initially will equal $583,863.
(2) The Class 1-A-20 Certificates are Interest Only Certificates,
have no Class
Certificate Balance and will not be entitled to distributions in
respect of
principal. Interest will accrue on the Class 1-A-20 Certificates
based on its
Notional Amount, which initially will equal $558,295.
(3) The Class 1-A-LR Certificate will represent the residual
interest in the
Lower-Tier REMIC for purposes of the REMIC Provisions. It will not
represent an
interest in the Upper-Tier REMIC.
(4) The Class 30-IO Certificates are Interest Only Certificates and
will be
deemed for purposes of distributions of interest to consist of two
Components
described in the table: the Class 1-IO Component and the Class 2-IO
Component
(collectively, the "Class IO Components" and each a "Class IO
Component"). The
Components of a Class are not severable. The initial Class 30-IO
Notional Amount
is $6,480,426.57.
(5) The Class 30-PO Certificates are Principal Only Certificates
and will be
deemed for purposes of distributions of principal to consist of two
Components
described in the table: the Class 1-PO Component and the Class 2-PO
Component
(collectively, the "Class PO Components" and each a "Class PO
Component"). The
Class PO Components are not severable. The initial Class
Certificate Balance of
the Class 30-PO Certificates is $4,431,115.88.
(6) Interest will accrue on the Class B-1, Class B-2, Class B-3,
Class B-4,
Class B-5 and Class B-6 Certificates as of any Distribution Date at
a per annum
rate equal to the weighted average (based on the Group Subordinate
Amount for
each Loan Group) of (i) 5.625% with respect to Loan Group 1 and
(ii) 5.750% with
respect to Loan Group 2. For federal income tax
5
purposes, the rate on the Class B Certificates will be equal to the
weighted
average of the interest accrued on the LT1B Interest and the LT2B
Interest
weighted on the basis of the principal balances of such
Uncertificated
Lower-Tier Interests.
(7) The Class 1-IO Component and Class 2-IO Component are interest
only
Components and will accrue interest on the Class 1-IO Notional
Amount and Class
2-IO Notional Amount, respectively, for the related Distribution
Date. For
federal income tax purposes, the Class 1-IO Component and Class
2-IO Component
shall be entitled to 100% of the interest distributed in respect of
the Class
LT1AIO Interest and the Class LT2AIO Interest, respectively.
(8) The Class 1-PO Component and Class 2-PO Component are principal
only
Components and will not bear 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 (other than the Class 30-IO Certificates),
one month's
interest accrued during the related Interest Accrual Period at the
applicable
Pass-Through Rate on the applicable Class Certificate Balance or
Notional
Amount, as applicable. For any Distribution Date and the Class
30-IO
Certificates, the sum of the Accrued Component Interest for each
Class IO
Component.
Accrued Component Interest: For any Distribution Date and each
Class
1-IO Component and Class 2-IO Component, one month's interest
accrued during the
related Interest Accrual Period at the applicable Pass-Through Rate
on the Class
1-IO Notional Amount or Class 2-IO Notional Amount, respectively.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-Off Date Pool Principal Balance of the Mortgage
Loans of such
Loan Group minus the sum of (i) all amounts in respect of principal
received in
respect of the Mortgage Loans in such Loan Group (including,
without limitation,
amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments,
Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to
Holders of the Certificates of the Related Group on such
Distribution Date and
all prior Distribution Dates and (ii) the principal portion of all
Realized
Losses (other than Debt Service Reductions) incurred on the
Mortgage Loans in
such Loan Group from the Cut-Off Date through the end of the month
preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the difference between the
Adjusted Pool
Amount and the Adjusted Pool Amount (PO Portion) for such Loan
Group.
6
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date and Loan Group, the sum of the amount, calculated as follows,
with respect
to each Outstanding Mortgage Loan in such Loan Group: the product
of (i) the PO
Percentage for such Mortgage Loan and (ii) the remainder of (A) the
Cut-Off Date
Principal Balance of such Mortgage Loan minus (B) the sum of (x)
all amounts in
respect of principal received in respect of such Mortgage Loan
(including,
without limitation, amounts received as Monthly Payments, Periodic
Advances,
Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts)
and distributed to Holders of the Certificates of the Related Group
on such
Distribution Date and all prior Distribution Dates and (y) the
principal portion
of any Realized Loss (other than a Debt Service Reduction) incurred
on such
Mortgage Loan from the Cut-Off Date through the end of the month
preceding such
Distribution Date.
Administrative Fee Rate: With respect to each Mortgage Loan, the
sum
of (i) the Servicing Fee Rate and (ii) the Securities Administrator
Fee Rate.
Advance: A Periodic Advance or a Servicing Advance.
Advance Date: As to any Distribution Date and each Mortgage Loan,
the
Business Day preceding the related Remittance Date.
Aggregate Subordinate Percentage: As to any Distribution Date, the
aggregate Class Certificate Balance of the Subordinate Certificates
divided by
the aggregate Pool Stated Principal Balance (Non-PO Portion) for
the Loan
Groups.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Ancillary Income: All prepayment premiums (if any), assumption
fees,
late payment charges and all other ancillary income and fees with
respect to the
Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal
obtained by the
originator at origination of such Mortgage Loan or, in certain
cases, an
automated valuation model (if applicable) 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 (if applicable) 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.
7
BAFC: Banc of America Funding Corporation.
BAMCC: Banc of America Mortgage Capital Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
BANA Servicing Agreement: The Servicing Agreement, dated March 30,
2005, by and between BAFC, as depositor, and BANA, as servicer.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a
day on which banking institutions in the states in which the
servicing offices
of any Servicer, as applicable, are located, 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.
Buy-Down Account: The separate Eligible Account or Accounts created
and maintained by a Servicer pursuant to Section 3.08.
Buy-Down Agreement: An agreement governing the application of
Buy-Down
Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's monthly payment during the
initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the monthly interest payments
made by the
related Mortgagor will be less than the scheduled monthly interest
payments on
such Mortgage Loan, with the resulting difference in interest
payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Funding Corporation
Mortgage
Pass-Through Certificates, Series 2005-2 that are issued pursuant
to this
Agreement.
Certificate Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.09(a) in the
name of the
Securities Administrator, on behalf of the Trustee, for the benefit
of the
Certificateholders and designated "Wells Fargo Bank, N.A., as
Securities
Administrator for Wachovia Bank, National Association, as Trustee,
in trust for
registered holders of Banc of America Funding Corporation Mortgage
Pass-Through
Certificates, Series 2005-2." The Certificate Account shall be
deemed to consist
of three sub-accounts; one for each Loan Group and a third
sub-account referred
to herein as the Upper-Tier
8
Certificate Sub-Account. Funds in the Certificate Account shall be
held in trust
for the Holders of the Certificates for the uses and purposes set
forth in this
Agreement.
Certificate Balance: With respect to any Certificate (other than
Class
1-A-13, Class A-1-20 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-13, Class A-1-20
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 or any affiliate thereof
shall be
deemed not to be outstanding and the Percentage Interest and Voting
Rights
evidenced thereby shall not be taken into account in determining
whether the
requisite amount of Percentage Interests or Voting Rights, as the
case may be,
necessary to effect any such consent has been obtained, unless such
entity is
the registered owner of the entire Class of Certificates, provided
that the
Securities Administrator shall not be responsible for knowing that
any
Certificate is registered in the name of an affiliate of the
Depositor or the
Master Servicer unless one of its Responsible Officers has actual
knowledge
thereof.
Certification: As defined in Section 3.22.
CHF: Chase Home Finance LLC.
CHF Servicing Agreement: Collectively, the Mortgage Loan Purchase,
Warranties and Servicing Agreement, Whole Loan Series 2004 WL-WW,
dated as of
December 1, 2004, and the Mortgage Loan Purchase, Warranties and
Servicing
Agreement, Whole Loan Series 2005 WL-C, dated as of February 1,
2005, each by
and between BANA and CHF, as amended by the Assignment, Assumption
and
Recognition Agreement, dated March 30, 2005, among BANA, the
Depositor, the
Trustee and CHF.
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-R, Class 1-A-LR, Class 2-A-1, Class 2-A-2, Class
2-A-3, Class
2-A-4, Class 2-A-5, Class 30-IO, Class 30-PO, Class B-1, Class B-2,
Class B-
9
3, Class B-4, Class B-5, and Class B-6, as the case may be. For
ease of
reference, each of the Components also will be designated as a
Class herein.
Class 1-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date, the amount, if any, by
which the Class
Certificate Balance of the Class 1-A-1 Certificates would be
reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to
such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-14 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date, the amount, if any, by
which the Class
Certificate Balance of the Class 1-A-14 Certificates would be
reduced as a
result of the allocation of any reduction pursuant to Section
5.03(b) to such
Class, without regard to the operation of Section 5.03(e).
Class 1-A-12 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date for Group 1,
the lesser of
(a) the Class Certificate Balance of the Class 1-A-12 Certificates
with respect
to such Distribution Date prior to any reduction for the Class
1-A-12 Loss
Allocation Amount and (b) the Class 1-A-1 Loss Amount with respect
to such
Distribution Date.
Class 1-A-15 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support Depletion Date for Group 1,
the lesser of
(a) the Class Certificate Balance of the Class 1-A-15 Certificates
with respect
to such Distribution Date prior to any reduction for the Class
1-A-15 Loss
Allocation Amount and (b) the Class 1-A-14 Loss Amount with respect
to such
Distribution Date.
Class 1-A-13 Notional Amount: As to any Distribution Date and the
Class 1-A-13 Certificates, 0.2727272727% of the aggregate Class
Certificate
Balances of the Class 1-A-1 and the Class 1-A-12 Certificates.
Class 1-A-20 Notional Amount: As to any Distribution Date and the
Class 1-A-20 Certificates, the excess of (i) 2.2727272727% of the
aggregate
Class Certificate Balances of the 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 and
Class 1-A-16
Certificates over (ii) 6.8181818182% of the Class Certificate
Balance of the
Class 1-A-19 Certificates.
Class 1-IO Notional Amount: With respect to each Distribution Date
and
the Class 1-IO Component, an amount equal to the product of (i) the
aggregate of
the Stated Principal Balances of the Group 1 Premium Mortgage Loans
as of the
Due Date in the month preceding the month of such Distribution Date
and (ii) a
fraction, (a) the numerator of which is equal to the weighted
average of the Net
Mortgage Interest Rates of the Group 1 Premium Mortgage Loans
(based on the
Stated Principal Balances of the Group 1 Premium Mortgage Loans as
of the Due
Date in the month preceding the month of such Distribution Date)
minus 5.625%
and (b) the denominator of which is equal to 5.750%.
Class 2-IO Notional Amount: With respect to each Distribution Date
and
the 2-IO Component, an amount equal to the product of (i) the
aggregate of the
Stated Principal Balances of the Group 2 Premium Mortgage Loans as
of the due
date in the month preceding the month of such Distribution Date and
(ii) a
fraction, (a) the numerator of which is equal to the
10
weighted average of the Net Mortgage Interest Rates of the Group 2
Premium
Mortgage Loans (based on the Stated Principal Balances of the Group
2 Premium
Mortgage Loans as of the Due Date in the month preceding the month
of such
Distribution Date) minus 5.750% and (b) the denominator of which is
equal to
5.750%.
Class 30-IO Notional Amount: With respect to any Distribution Date,
an
amount equal to the sum of the Class 1-IO Notional Amount and Class
2-IO
Notional Amount for such Distribution Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4,
Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class (other than
the
Class 1-A-13, Class 1-A-20 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), (ii) all
reductions in
Class Certificate Balance previously allocated thereto pursuant to
Section
5.03(b) and (iii) in the case of the Class 1-A-12 Certificates and
the Class
1-A-15 Certificates, any reduction allocated thereto pursuant to
Section 5.03(e)
plus (B) the sum of (i) all increases in Class Certificate Balance
previously
allocated thereto pursuant to Section 5.03(b) and (ii) in the case
of the Class
1-A-1 Certificates and the Class 1-A-15 Certificates, any increases
allocated
thereto pursuant to Section 5.03(e). The Class Certificate Balance
of the Class
30-PO Certificates as of any date of determination shall equal the
sum of the
Component Balances of the Class PO Components. The Class 1-A-13,
Class 1-A-20
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 IO Component: As defined in the Preliminary Statement.
Class PO Component: As defined in the Preliminary Statement.
Class PO Deferred Amount: As to any Distribution Date and each
Class
PO Component, the sum of the amounts by which the Component Balance
of such
Class PO Component will be reduced on such Distribution Date or has
been reduced
on prior Distribution Dates as a result of Section 5.03(b) less the
sum of (a)
the Class PO Recoveries with respect to the Related Loan Group for
prior
Distribution Dates and (b) the amounts distributed to such Class PO
Component
pursuant to Section 5.02(a)(iii) on prior Distribution Dates.
Class PO Principal Distribution Amount: As to each Distribution
Date,
distributions of principal of the Class PO Component for a Group
will be made in
an amount with respect to each Group equal to the lesser of:
11
(a) the applicable PO Principal Amount for the related Loan Group
for
such Distribution Date; and
(b) the product of (1) the Pool Distribution Amount for the related
Loan Group remaining after distributions of interest on the Senior
Certificates
of the related Group and (2) a fraction, the numerator of which is
the PO
Principal Amount for such Loan Group and the denominator of which
is the sum of
the PO Principal Amount for such Loan Group and the Senior
Principal
Distribution Amount for such Loan Group.
Class PO Recovery: As to any Distribution Date and Loan Group, the
lesser of (a) (i) in the case of Group 1, the Class PO Deferred
Amounts for the
Class 1-PO Component for such Distribution Date and (ii) in the
case of Group 2,
the Class PO Deferred Amount for the Class 2-PO Component for such
Distribution
Date and (b) an amount equal to the sum, as to each Mortgage Loan
in such Loan
Group as to which there has been a Recovery received during the
Prior Period, of
the product of (x) the PO Percentage with respect to such Mortgage
Loan and (y)
the amount of the Recovery received during the Prior Period 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: March 30, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date and
Servicer, an amount equal to the lesser of (a) the aggregate
Servicing Fee
payable to such Servicer for the Mortgage Loans serviced by such
Servicer as of
the Due Date of the month preceding the month of such Distribution
Date and (b)
the aggregate of the Prepayment Interest Shortfalls on the Mortgage
Loans
serviced by such Servicer resulting from Principal Prepayments on
such Mortgage
Loans during the related Prior Period. To the extent that the
aggregate
Prepayment Interest Shortfall for the Loan Groups for a
Distribution Date
exceeds Compensating Interest for the Loan Groups, the Compensating
Interest for
the Loan Groups for such Distribution Date shall be allocated
between the Loan
Groups in proportion to the respective Prepayment Interest
Shortfalls relating
to the Loan Groups.
Component: Any of the Class IO Components or Class PO Components.
Component Balance: With respect to any Class PO Component and any
date
of determination, the Initial Component Balance of such Component
minus the sum
of (i) all distributions of principal made with respect thereto and
(ii) all
reductions in the related Component Balance previously allocated
thereto
pursuant to Section 5.03(b). The Class IO Components are
interest-only
Components and have no Component Balance.
12
Component Interest Distribution Amount: For any Distribution Date
and each Class IO Component, the sum of (i) the Accrued Component
Interest for
such Component and (ii) any Component Unpaid Interest Shortfall for
such
Component. The Class PO Components are principal only Components
and are not
entitled to distributions of interest.
Component Interest Shortfall: For any Distribution Date and each
Class
IO Component, the amount by which Accrued Component Interest for
such Component
exceeds the amount of interest actually distributed on such
Component on such
Distribution Date pursuant to clause (i) of the definition of
"Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, any of the
Class 1-IO Notional Amount and Class 2-IO Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date
and
each Class IO Component, the amount by which the aggregate
Component Interest
Shortfalls for such Component on prior Distribution Dates exceeds
the amount of
interest actually distributed on such Component on such prior
Distribution Dates
pursuant to clause (ii) of the definition of "Component Interest
Distribution
Amount."
Cooperative: A private, cooperative housing corporation which owns
or
leases land and all or part of a building or buildings, including
apartments,
spaces used for commercial purposes and common areas therein and
whose board of
directors authorizes, among other things, the sale of Cooperative
Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an
exclusive
right to occupy pursuant to the terms of a proprietary lease or
occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary
lease or occupancy agreement with respect to the Cooperative
Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock,
which lease or
agreement confers an exclusive right to the holder of such
Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing
statements and
(v) a stock power (or other similar instrument), and ancillary
thereto, a
Recognition Agreement, each of which was transferred and assigned
to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the
stock certificate or other instrument evidencing the related
Cooperative Stock.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of
this
instrument is located at 401 South Tryon
13
Street, Charlotte, North Carolina, 28288-1179 Attention: Structured
Finance
Trust Services, BAFC, Series 2005-2, or at such other address as
the Trustee may
designate from time to time by notice to the Certificateholders,
the Depositor,
the Securities Administrator and the Master Servicer. With respect
to the
Securities Administrator, the principal corporate trust office of
the Securities
Administrator at which at any particular time its corporate trust
business with
respect to this Agreement is conducted, which office at the date of
the
execution of this instrument is located at 9062 Old Annapolis Road,
Columbia,
Maryland 21045-1951, Attention: Corporate Trust Services - BAFC
2005-2, and for
certificate transfer purposes is located at Sixth Street and
Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services -
BAFC 2005-2,
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, Classes, Component or Components:
As
defined in the Preliminary Statement.
Custodian: Initially, the Trustee and thereafter the Custodian or
Custodians, if any, hereafter appointed by the Trustee pursuant to
Section 9.12.
A Custodian may (but need not) be the Trustee or any Person
directly or
indirectly controlling or controlled by or under common control of
either of
them. None of the Master 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 (i) any Servicer,
procedures (including collection procedures) that a Servicer
customarily employs
and exercises in servicing and administering mortgage loans for its
own account
and which are in accordance with accepted mortgage servicing
practices of
prudent lending institutions servicing mortgage loans of the same
type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties
are located and (ii) the Master Servicer, those master servicing
procedures that
constitute customary and usual standards of practice of prudent
mortgage loan
master servicers. Cut-Off Date: March 1, 2005.
Cut-Off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-Off Date Principal Balances of the Mortgage
Loans in such
Loan Group which is $256,902,839.57 for Loan Group 1 and
$96,147,738.19 for Loan
Group 2.
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
14
Reduction so long as (a) the Servicer of such Mortgage Loan is
pursuing an
appeal of the court order giving rise to any such modification and
(b)(1) such
Mortgage Loan is not in default with respect to payment due
thereunder in
accordance with the terms of such Mortgage Loan as in effect on the
Cut-Off Date
or (2) Monthly Payments are being advanced by the applicable
Servicer, the
Master Servicer or the Trustee, as applicable, in accordance with
the terms of
such Mortgage Loan as in effect on the Cut-Off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under
such Mortgage
Loan over (ii) the secured valuation thereof established by a court
of competent
jurisdiction (pursuant to an order which has become final and
nonappealable) as
a result of a proceeding initiated by or against the related
Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant
to which
such Mortgagor retained such Mortgaged Property; provided that no
such excess
shall be considered a Deficient Valuation so long as (a) the
applicable Servicer
is pursuing an appeal of the court order giving rise to any such
modification
and (b)(1) such Mortgage Loan is not in default with respect to
payments due
thereunder in accordance with the terms of such Mortgage Loan as in
effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the
applicable
Servicer, the Master Servicer or the Trustee, as applicable, in
accordance with
the terms of such Mortgage Loan as in effect on the Cut-Off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the
Trust Estate.
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 Group 1 Discount Mortgage Loan or Group
2
Discount Mortgage Loan.
15
Distribution Date: The 25th day of each month beginning in April
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, N.A. 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 or Class
B-6
Certificate.
Escrow Account: As defined in Section 3.08.
16
Escrow Payments: The amounts constituting taxes, assessments,
Primary
Mortgage Insurance Policy premiums, fire and hazard insurance
premiums and other
payments as may be required to be escrowed by the Mortgagor with
the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed
to the
applicable Servicer as Nonrecoverable Advance(s) with respect to
such Mortgage
Loan pursuant to Section 3.11(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 an Advance (other than a Servicing Advance) was made
(and not
reimbursed) up to the Due Date applicable to the Distribution Date
immediately
following the calendar month during which such liquidation
occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: Federal Housing Administration, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant
to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by
written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K: As defined in Section 3.22.
Fractional Interest: As defined in Section 5.02(d).
Group: Any of Group 1 or Group 2.
Group 1: The Group 1 Senior Certificates, the Class 1-IO Component
and
the Class 1-PO Component.
17
Group 1 Discount Mortgage Loan: Any Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-Off Date that is less than
5.625% per
annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-Off Date that is greater than
or equal to
5.625% per annum.
Group 1 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-R and Class 1-A-LR Certificates.
Group 2: The Group 2 Certificates, the Class 2-IO Component and the
Class 2-PO Component.
Group 2 Discount Mortgage Loan: Any Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-Off Date that is less than
5.750% per
annum.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than
or equal to
5.750% per annum.
Group 2 Senior Certificates: The Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 2-A-4 and Class 2-A-5 Certificates.
Group Subordinate Amount: With respect to any Distribution Date and
any Loan Group, the excess of the Pool Stated Principal Balance
(Non-PO Portion)
for such Loan Group over the aggregate Class Certificate Balance of
the Senior
Certificates (not including the Class PO Component) of the Related
Group
immediately prior to such date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such
a Person who (i) is in fact independent of the Depositor, the
Master Servicer
and any Servicer, (ii) does not have any direct financial interest
or any
material indirect financial interest in the Depositor, the Master
Servicer or
any Servicer or in an affiliate of any of them, and (iii) is not
connected with
the Depositor, the Master Servicer, or any Servicer as an officer,
employee,
promoter, underwriter, trustee, partner, director or person
performing similar
functions.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class 1-A-13, Class 1-A-20 and Class 30-IO
Certificates), the
Class Certificate Balance set forth in the Preliminary Statement.
The Class
1-A-13, Class 1-A-20 and Class 30-IO Certificates are Interest-Only
Certificates
and have no Initial Class Certificate Balance.
Initial Component Balance: As to each Class PO Component, the
Component Balance set forth in the Preliminary Statement.
18
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 Primary Mortgage Insurance Policy or any other
insurance
policy (including any policy covering any Mortgage Loan or
Mortgaged Property,
including without limitation, any hazard insurance policy required
pursuant to
Section 3.12, any title insurance policy described in Section 2.01
and any FHA
insurance policies and VA insurance policies), including all riders
and
endorsements thereto in effect, including any replacement policy or
policies for
any Insurance Policies. Insurance Proceeds: Proceeds paid by an
insurer pursuant
to any Insurance Policy, in each case other than any amount
included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of
Certificates (other than the Class 30-IO Certificates and Class
30-PO
Certificates) and each Class IO Component, the period from and
including the
first day of the calendar month preceding the calendar month of
such
Distribution Date to but not including the first day of the
calendar month of
such Distribution Date.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class (other than Class 30-IO Certificates), the
sum of (i) the
Accrued Certificate Interest, subject to reduction pursuant to
Section 5.02(c)
and (ii) any Class Unpaid Interest Shortfall for such Class. For
any
Distribution Date and the Class 30-IO Certificates, the sum of the
Component
Interest Distribution Amounts for the Class IO Components.
Interest-Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The
Class 1-A-13,
Class 1-A-20 and Class 30-IO Certificates are the only Classes of
Interest-Only
Certificates.
Class IO Components: As defined in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was
liquidated in the
Prior Period and as to which the applicable Servicer has certified
(in
accordance with the applicable 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.
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Loan Group: Any of Loan Group 1 or Loan Group 2.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of
determination, the fraction, expressed as a percentage, the
numerator of which
is the outstanding principal balance of the related Mortgage Loan
at origination
and the denominator of which is the Appraised Value of the related
Mortgaged
Property.
Losses: As defined in Section 5.09(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, the insurance policies, if any,
relating to
a Mortgage Loan and the Mortgaged Property which secured a Mortgage
Loan and
which has been acquired by foreclosure or deed in lieu of
foreclosure.
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's Certificate: The monthly report required by the
Master Servicer pursuant to Section 4.01.
Master Servicer Custodial Account: The Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.09 in the
name of the
Master Servicer for the benefit of the Certificateholders and
designated "Wells
Fargo Bank, N.A., as Master Servicer, in trust for the registered
holders of
Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series
2005-2."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized
since the
preceding Distribution Date from Permitted Investments of funds in
the Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in Section 3.22(c).
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
(including attorney's fees) incurred by the Trustee or a successor
master
servicer in connection with the transfer of master servicing or
servicing from a
predecessor master servicer, including, without limitation, any
costs or
expenses associated with the complete transfer of all master
servicing data or
servicing data and the completion, correction or manipulation of
such master
servicing data or servicing data as may be required by the Trustee
or successor
master servicer to correct
20
any errors or insufficiencies in the master servicing data or
servicing data or
otherwise to enable the Trustee or a successor master servicer to
master service
or service, as the case may be, the applicable Mortgage Loans
properly and
effectively.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.22.
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,
prior to giving
any effect to any Debt Service Reduction.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated March 30, 2005, between BANA, as seller, and the
Depositor, as
purchaser.
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 related
Mortgage Loan
Schedule.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of
Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans
pursuant to the
provisions of this Agreement) transferred to the Trustee as part of
the Trust
Estate and from time to time subject to this Agreement, attached
hereto as
Exhibit D-1 and Exhibit D-2, 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
21
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 Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan,
which may include Cooperative Stock or residential long-term
leases.
Mortgagor: The obligor on a Mortgage Note.
National City Mortgage: National City Mortgage Co.
National City Mortgage Servicing Agreement: Collectively, the
Master
Seller's Warranties and Servicing Agreement, dated as of September
1, 2003, by
and between BANA (as successor in interest to BAMCC) and National
City Mortgage,
as amended by (i) Amendment No. 1, dated as of July 1, 2004, by and
among Banc
of America Mortgage Capital Corporation, National City Mortgage and
BANA, (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, BANA and Wachovia Bank, (iii) Amendment No. 2, dated as
of October 1,
2004, by and between National City Mortgage and BANA and (iv) the
Assignment
Assumption and Recognition Agreement, dated March 30, 2005, by and
among BANA,
the Depositor, the Trustee 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 Prior Period reduced by the Administrative Fee Rate for such
Mortgage Loan.
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 5.6250% for each Group 1 Discount Mortgage Loan and
5.750% for each
Group 2 Discount Mortgage Loan. As to any Mortgage Loan that is not
a Discount
Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date and Loan
Group,
the sum of (i) the sum of the applicable Non-PO Percentage of (a)
the principal
portion of each Monthly Payment due on each Mortgage Loan in such
Loan Group on
the related Due Date, (b) the Stated Principal Balance, as of the
date of
repurchase, of (I) each Mortgage Loan in such Loan Group that was
repurchased by
a Servicer pursuant to the applicable Servicing Agreement as of
such
Distribution Date, (II) each Mortgage Loan in such Loan Group
repurchased by the
Seller pursuant to the Mortgage Loan Purchase Agreement or a
Purchase Obligation
as of such Distribution Date, (III) each Mortgage Loan in such Loan
Group
repurchased by the Depositor
22
pursuant to Section 3.15(f) or (IV) each Mortgage Loan in such Loan
Group
purchased by the Master Servicer pursuant to Section 10.01, (c) any
Substitution
Adjustment Amount in connection with a Defective Mortgage Loan in
such Loan
Group received during the Prior Period relating to such
Distribution Date, (d)
any Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans
in such Loan Group that are not yet Liquidated Mortgage Loans
received by a
Servicer during the Prior Period relating to such Distribution
Date, (e) with
respect to each Mortgage Loan in such Loan Group that became a
Liquidated
Mortgage Loan during the Prior Period relating to such Distribution
Date, the
amount of Liquidation Proceeds (excluding Excess Proceeds)
allocable to
principal received by a Servicer with respect to such Mortgage Loan
during such
Prior Period, (f) with respect to each Mortgage Loan, all Principal
Prepayments
on the Mortgage Loans in such Loan Group received by a Servicer
during the Prior
Period relating to such Distribution Date, and (g) any other
principal
recoveries (other than Payaheads) not described in clauses (a)
through (f) of
this definition received with respect to the Mortgage Loans in such
Loan Group
during the Prior Period relating to such Distribution Date; and
(ii) the Non-PO
Recovery with respect to such Loan Group for such Distribution
Date.
Non-PO Recovery: As to any Distribution Date and Loan Group, the
amount of all Recoveries received with respect to such Loan Group
during Prior
Period less the Class PO Recovery with respect to such Loan Group
for such
Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest
Shortfalls exceeds
the aggregate Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a Mortgage Loan which has not
been previously
reimbursed and which, in the good faith judgment of the applicable
Servicer will
not or, in the case of a proposed Advance, would not be ultimately
recoverable
from the related Mortgagor, related Liquidation Proceeds, Insurance
Proceeds or
other recoveries in respect of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Notional Amount: With respect to (a) the Class 1-A-13 Certificates
and
any date of determination, the Class 1-A-13 Notional Amount, (b)
the Class
1-A-20 Certificates and any date of determination, the Class 1-A-20
Notional
Amount and (c) 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.
23
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 one or more 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
1.52%
Class B-2
1.01%
Class B-3
0.61%
Class B-4
0.35%
Class B-5
0.15%
Class B-6
0.00%
Original Subordinate Certificate Balance: $10,592,361.88.
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, which did
not become a
Liquidated Mortgage Loan prior to such Due Date and which was not
purchased from
the Trust prior to such Due Date pursuant to Sections 2.02 or
3.15(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
or Components, the per annum rate set forth or described in the
Preliminary
Statement.
Payahead Amount: As to any Distribution Date and Mortgage Loan,
early
prepayments of scheduled installments of principal and interest
made by a
Mortgagor during the Prior Period immediately preceding such
Distribution Date
that are intended by such Mortgagor to be applied on subsequent Due
Dates.
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-13, Class 1-A-20 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.
24
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
Securities Administrator or its affiliates, or funds for which an
affiliate
of the Securities Administrator acts as advisor, as well as funds
for which
the Securities Administrator and its affiliates may receive
compensation)
rated either "AAA" by 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 or Securities Administrator, as the case may be,
will not
affect the qualification of the Trust Estate as one or more 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
25
foreign government, international organization or any agency or
instrumentality
of either of the foregoing, (iii) an organization which is exempt
from tax
imposed by Chapter 1 of the Code (including the tax imposed by
Section 511 of
the Code on unrelated business taxable income) (except certain
farmers'
cooperatives described in Code Section 521), (iv) rural electric
and telephone
cooperatives described in Code Section 1381(a)(2)(C), (v) a Person
with respect
to whom the income on a Residual Certificate is allocable to a
foreign permanent
establishment or fixed base, within the meaning of an applicable
income tax
treaty, of such Person or any other U.S. Person, and (vi) any other
Person so
designated by a Master Servicer based on an Opinion of Counsel to
the effect
that any transfer to such Person may cause the Trust or any other
Holder of a
Residual Certificate to incur tax liability that would not be
imposed other than
on account of such transfer. The terms "United States," "State" and
"international organization" shall have the meanings set forth in
Code Section
7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-LR, Class B-4,
Class
B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Class PO Component: As defined in the Preliminary Statement.
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO
Percentage for such Mortgage Loan. As to any Mortgage Loan that is
not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group,
(i)
the sum of the applicable PO Percentage of (a) the principal
portion of each
Monthly Payment due on each Mortgage Loan in such Loan Group on the
related Due
Date; (b) the Stated Principal Balance, as of the date of
repurchase, of (I)
each Mortgage Loan in such Loan Group that was repurchased by a
Servicer
pursuant to the applicable Servicing Agreement as of such
Distribution Date,
(II) each Mortgage Loan in such Loan Group repurchased by the
Seller pursuant to
the Mortgage Loan Purchase Agreement or a Purchase Obligation as of
such
Distribution Date, (III) each Mortgage Loan in such Loan Group
repurchased by
the Depositor pursuant to Section 3.15(f), or (IV) each Mortgage
Loan in each
Loan Group purchased by the Master Servicer pursuant to Section
10.01; (c) any
Substitution Adjustment Amount in connection with any Defective
Mortgage Loan in
such Loan Group received with respect to such Distribution Date;
(d) any
Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received
by a
Servicer during the Prior Period relating to such Distribution
Date; (e) with
respect to each Mortgage Loan in such Loan Group that became a
Liquidated
Mortgage Loan during the Prior Period relating to such Distribution
Date, the
amount of Liquidation Proceeds (excluding Excess Proceeds)
allocable to
principal received by a Servicer with respect to such Mortgage Loan
during such
Prior Period; (f) all Principal Prepayments on the Mortgage Loans
in such Loan
Group received by a Servicer during the Prior Period related to
such
Distribution Date; and (g)
26
any other principal recoveries (other than Payaheads) not described
in clauses
(a) through (f) of this definition received with respect to the
Mortgage Loans
in such Loan Group during the Prior Period relating to such
Distribution Date;
and (ii) the Class PO Recovery with respect to such Loan Group for
such
Distribution Date.
Pool Distribution Amount: As to any Distribution Date and Loan
Group,
the excess of (a) the sum of (i) the aggregate of (A) the interest
portion of
any Monthly Payment on a Mortgage Loan in such Loan Group (net of
the
Administrative Fee) and the principal portion of any Monthly
Payment on a
Mortgage Loan in such Loan Group due on the Due Date in the month
in which such
Distribution Date occurs and which is received prior to the related
Determination Date and (B) all Periodic Advances made by a Servicer
(or the
Master Servicer or the Trustee, as applicable) in respect of such
Loan Group and
payments of Compensating Interest allocable to such Loan Group made
by the
applicable Servicer in respect of such Loan Group and such
Distribution Date
deposited to the Master Servicer Custodial Account pursuant to
Section
3.09(d)(vi); (ii) all Liquidation Proceeds (other than Excess
Proceeds) received
on the Mortgage Loans in such Loan Group during the Prior Period
relating to
such Distribution Date and deposited to the Master Servicer
Custodial Account
pursuant to Section 3.09(d)(iii); (iii) all Principal Prepayments
received on
the Mortgage Loans in such Loan Group during the Prior Period
relating to such
Distribution Date and deposited to the Master Servicer Custodial
Account
pursuant to Section 3.09(d)(i) during such period (iv) in
connection with any
Mortgage Loans that are Defective Mortgage Loans in such Loan
Group, the
aggregate of the Purchase Prices and Substitution Adjustment
Amounts remitted on
the related Remittance Date pursuant to Section 3.09(d)(vii); (v)
any other
amounts in the Master Servicer Custodial Account deposited therein
pursuant to
Section 3.09(d)(iv), (v), (viii) and (ix) in respect of such
Distribution Date
and such Loan Group; (vi) any Reimbursement Amount required to be
included
pursuant to Section 5.02(a); and (vii) any Non-PO Recovery with
respect to such
Distribution Date and Loan Group over (b) any amounts permitted to
be withdrawn
from the Master Servicer Custodial Account pursuant to clauses (i)
through
(viii), inclusive, of Section 3.11(a) in respect of such Loan
Group.
Pool Stated Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans
in such Loan
Group that were Outstanding Mortgage Loans immediately following
the Due Date in
the month preceding the month in which such Distribution Date
occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution
Date and Loan Group, the sum of the product, for each Mortgage Loan
of such Loan
Group, of (a) the Non-PO Percentage of such Mortgage Loan
multiplied by (b) the
Stated Principal Balance of such Mortgage Loan that was an
Outstanding Mortgage
Loan immediately following the Due Date in the month preceding the
month in
which such Distribution Date occurs.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan or Group 2
Premium Mortgage Loan.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the
Prior
Period, the amount, if any, by which one month's interest at the
related
Mortgage Interest Rate (net of the Servicing Fee Rate)
27
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: With respect to each Mortgage Loan, any
payment
or other recovery of principal on a Mortgage Loan (other than
Liquidation
Proceeds or Payaheads) 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.
Prior Period: With respect to any Distribution Date, the calendar
month immediately preceding the month of such Distribution Date.
Priority Amount: As to any Distribution Date, (A) with respect to
the
Pool Distribution Amount for Loan Group 1, the least of (i) the
aggregate Class
Certificate Balance of the Class 1-A-1 and Class 1-A-12
Certificates, (ii) the
product of (a) the Shift Percentage, (b) the Priority Percentage
and (c) the
Non-PO Principal Amount for the Group 1 Senior Certificates or
(iii) the Senior
Principal Distribution Amount for Loan Group 1 and (B) with respect
to the Pool
Distribution Amount for Loan Group 2, the least of (i) the Class
Certificate
Balance of the Class 2-A-1 Certificates, (ii) the product of (a)
the Shift
Percentage, (b) the Priority Percentage and (c) the Non-PO
Principal Amount for
the Group 2 Senior Certificates or (iii) the Senior Principal
Distribution
Amount for Loan Group 2.
Priority Percentage: As to any Distribution Date, (A) with respect
to
the Pool Distribution Amount for Loan Group 1, the percentage
equivalent
(carried to six places rounded up) of a fraction the numerator of
which is the
aggregate Class Certificate Balance of the Class 1-A-1 and Class
1-A-12
Certificates immediately prior to such date and the denominator of
which is the
Pool Stated Principal Balance (Non-PO Portion) for Loan Group 1
immediately
prior to such date and (B) with respect to the Pool Distribution
Amount for Loan
Group 2, the percentage equivalent (carried to six places rounded
up) of a
fraction the numerator of which is the Class Certificate Balance of
the Class
2-A-1 Certificates immediately prior to such date and the
denominator of which
is the Pool Stated Principal Balance (Non-PO Portion) for Loan
Group 2
immediately prior to such date.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the
portion of the
Subordinate Principal Distribution
28
Amount or Amounts allocable to such Class, equal to the product of
the
Subordinate Principal Distribution Amount or Amounts for the
Subordinate
Certificates for such Distribution Date and a fraction, the
numerator of which
is the related Class Certificate Balance thereof and the
denominator of which is
the aggregate Class Certificate Balance of the Subordinate
Certificates that are
not Restricted Classes. The Pro Rata Share of a Restricted Class
shall be 0%.
Purchase Obligation: An obligation of the Seller to purchase
Mortgage
Loans under the circumstances and in the manner provided in Section
2.02.
Purchase Price: With respect to each Mortgage Loan that was a
Defective Mortgage Loan repurchased on any date pursuant to
Sections 2.02, an
amount equal to 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 the Person repurchasing such
Mortgage Loan is
servicing such Mortgage Loan under the related Servicing Agreement,
the
Servicing Fee for such Mortgage Loan.
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.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of
such
Cooperative Loan.
29
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of
the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1, and for Loan Group 2,
Group 2.
Related Loan Group: For Group 1, Loan Group 1, and for Group 2,
Loan
Group 2.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended
from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a reduction in the amount
of interest
collectible thereon for the most recently ended calendar month as a
result of
the application of the Relief Act or comparable state legislation,
the amount,
if any, by which (i) interest collectible on such Mortgage Loan for
the most
recently ended calendar month is less than (ii) interest accrued
pursuant to the
terms of the Mortgage Note on the same principal amount and for the
same period
as the interest collectible on such Mortgage Loan for the most
recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning
of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates and the Components as that term is
defined in
Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to
real estate mortgage investment conduits, which appear at Section
860A through
860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and
regulations promulgated thereunder, as the foregoing may be in
effect from time
to time, as well as provisions of applicable state laws.
Remittance Date: With respect to each Servicer, shall have the
meaning
given to the term "Remittance Date" in the applicable Servicing
Agreement.
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a Servicer
received in respect of any REO Property (including, without
limitation, proceeds
from the rental of the related Mortgaged Property) which are
received prior to
the final liquidation of such Mortgaged Property.
30
REO Property: A Mortgaged Property acquired by a Servicer servicing
the related Mortgage Loan on behalf of the Trust through
foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Request for Release: The Request for Release submitted by a
Servicer
to the Trustee or the Custodian on behalf of the Trustee, as the
case may be,
substantially in the form attached hereto as Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to
time under this
Agreement in respect of such Mortgage Loan.
Residual Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust
Department of the
Trustee or the Securities Administrator, as applicable, including
any Senior
Vice President, any Vice President, any Assistant Vice President,
any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of
the Trustee or Securities Administrator, as applicable, customarily
performing
functions similar to those performed by any of the above designated
officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.,
or any successor thereto.
Securities Administrator: Wells Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities administrator
is appointed
hereunder, such successor, as securities administrator.
Securities Administrator Fee: As to any Distribution Date and Loan
Group, an amount equal to one-twelfth of the Securities
Administrator Fee Rate
multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans in
such Loan Group immediately following the Due Date in the month
preceding the
month in which such Distribution Date occurs.
Securities Administrator Fee Rate: With respect to each Mortgage
Loan,
0.0075% per annum.
Security Agreement: With respect to a Cooperative Loan, the
agreement
or mortgage creating a security interest in favor of the originator
of the
Cooperative Loan in the related Cooperative Stock.
Seller: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the
Mortgage Loans under
the Mortgage Loan Purchase Agreement.
31
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-R, Class 1-A-LR, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
2-A-4, Class
2-A-5, 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 and Loan
Group, the percentage, carried to six places rounded up, obtained
by dividing
(i) the aggregate Class Certificate Balance of the Senior
Certificates of the
Related Group (but not the Class PO Component of such Group)
immediately prior
to such Distribution Date, by (ii) the Pool Stated Principal
Balance (Non-PO
Portion) of such Loan Group for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group
during the five (5) years beginning on the first Distribution Date,
100%. The
Senior Prepayment Percentage for any Loan Group and for any
Distribution Date
occurring on or after the fifth anniversary of the first
Distribution Date will,
except as provided herein, be as follows: for any Distribution Date
in the first
(1st) year thereafter, the Senior Percentage for such Loan Group
plus 70% of the
Subordinate Percentage for such Loan Group for such Distribution
Date; for any
Distribution Date in the second (2nd) year thereafter, the Senior
Percentage for
such Loan Group plus 60% of the Subordinate Percentage for such
Loan Group for
such Distribution Date; for any Distribution Date in the third
(3rd) year
thereafter, the Senior Percentage for such Loan Group plus 40% of
the
Subordinate Percentage for such Loan Group for such Distribution
Date; for any
Distribution Date in the fourth (4th) year thereafter, the Senior
Percentage for
such Loan Group plus 20% of the Subordinate Percentage for such
Loan Group for
such Distribution Date; and for any Distribution Date in the fifth
(5th) or
later years thereafter, the Senior Percentage for such Loan Group
for such
Distribution Date (unless on any of the foregoing Distribution
Dates, the Total
Senior Percentage exceeds the initial Total Senior Percentage, in
which case the
Senior Prepayment Percentage for each Loan Group for such
Distribution Date will
once again equal 100%). Notwithstanding the foregoing, no decrease
in the Senior
Prepayment Percentage for either Loan Group will occur unless both
of the Senior
Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and
Loan Group, the sum of (i) the Senior Percentage for such Loan
Group of the
applicable Non-PO Percentage of the amounts described in clauses
(i)(a) through
(d) of the definition of "Non-PO Principal Amount" for such
Distribution Date
and Loan Group and (ii) the Senior Prepayment Percentage for such
Loan Group of
(1) the applicable Non-PO Percentage of the amounts described in
clauses (i)(e)
through (g) and (2) the amount described in clause (ii) of the
definition of
"Non-PO Principal Amount" for such Distribution Date and Loan
Group.
Senior Step Down Conditions: As of any Distribution Date and as to
which any decrease in the Senior Prepayment Percentage for any Loan
Group
applies, (i) the outstanding principal balance of all Mortgage
Loans (including,
for this purpose, any Mortgage Loans in foreclosure, any REO
Property and any
Mortgage Loan for which the Mortgagor has filed for bankruptcy
after the Closing
Date) delinquent 60 days or more (averaged over the preceding six
32
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
---------------------------
--------------------
April 2010 through March 2011
30%
April 2011 through March 2012
35%
April 2012 through March 2013
40%
April 2013 through March 2014
45%
April 2014 and thereafter
50%
Servicer: Any of BANA, National City Mortgage, SunTrust, CHF,
Washington Mutual or Wells Fargo Bank, each in their capacity as a
servicer of
the Mortgage Loans, or any successor servicer appointed as herein
provided.
Servicer Custodial Accounts: The separate accounts created and
maintained by each of the Servicers pursuant to the applicable
Servicing
Agreement.
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,
the CHF Servicing Agreement, the Washington Mutual Servicing
Agreement, and the
Wells Fargo Servicing Agreement.
Servicing Fee: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in
the applicable Servicing Agreement.
Servicing File: 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
33
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
------------------------------
----------------
April 2005 through March 2010
0%
April 2010 through March 2011
30%
April 2011 through March 2012
40%
April 2012 through March 2013
60%
April 2013 through March 2014
80%
April 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 and Loan Group,
100% minus the Senior Percentage for such Loan Group for such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
Loan Group, 100% minus the Senior Prepayment Percentage for such
Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i)
the
Subordinate Percentage for such
34
Loan Group of the applicable Non-PO Percentage of the amounts
described in
clauses (i)(a) through (d) of the definition of "Non-PO Principal
Amount" for
such Distribution Date and Loan Group and (ii) the Subordinate
Prepayment
Percentage for such Loan Group of the applicable Non-PO Percentage
of the
amounts described in clauses (i)(e) through (g) and (2) the amount
described in
clause (ii) of the definition of "Non-PO Principal Amount" for such
Distribution
Date and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective
Mortgage Loan which must, on the date of such substitution (i) have
a Stated
Principal Balance, after deduction of the principal portion of the
Monthly
Payment due in the month of substitution, not in excess of the
Stated Principal
Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage
Interest Rate
not less than, and not more than 2% greater than that of the
Defective Mortgage
Loan; (iii) be of the same type as the Defective Mortgage Loan,
(iv) have a
Loan-to-Value Ratio not higher than that of the Defective Mortgage
Loan, (v)
have a FICO score not less than that of the Defective Mortgage
Loan, (vi) have a
credit grade not lower in quality than that of the Defective
Mortgage Loan,
(vii) have a remaining term to maturity not greater than (and not
more than one
(1) year less than) that of the Defective Mortgage Loan; (viii)
have the same
lien priority as the Defective Mortgage Loan; and (ix) comply with
each Mortgage
Loan representation and warranty set forth in the Mortgage Loan
Purchase
Agreement, the Servicing Agreements 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, by and between Banc of America
Mortgage Capital
Corporation (and BANA, as successor thereto) and SunTrust, as
amended by (i)
Amendment No. 1, dated as of June 1, 2004, and Amendment No. 2,
dated as of
November 1, 2004, by and between Banc of America Mortgage Capital
Corporation
(and BANA, as successor thereto) and SunTrust, (ii) the Master
Assignment,
Assumption and Recognition Agreement, dated September 1, 2004, by
and between
Banc of America Mortgage Capital Corporation (and BANA, as
successor thereto)
and SunTrust, and (iii) the Assignment, Assumption and Recognition
Agreement,
dated March 30, 2005, among BANA, BAFC, the Trustee and SunTrust.
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.
Total Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing (x)
the sum of
the Class Certificate Balance of the Group 1 Senior Certificates
and the Group 2
Senior Certificates by (y) the aggregate Pool Stated Principal
Balance (Non-PO
Portion) for both Loan Groups with respect to such Distribution
Date.
35
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 2005-2 Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to a portion of which one or more REMIC elections are
to be made,
such entire Trust Estate consisting of: (i) such Mortgage Loans as
from time to
time are subject to this Agreement, together with the Mortgage
Files relating
thereto, and together with all collections thereon and proceeds
thereof, (ii)
any REO Property, together with all collections thereon and
proceeds thereof,
(iii) the Trustee's rights with respect to the Mortgage Loans under
all
insurance policies required to be maintained pursuant to this
Agreement and any
proceeds thereof, (iv) the right to receive amounts, if any,
payable on behalf
of any Mortgagor from the Buy-Down Account relating to any Buy-Down
Mortgage
Loan, (v) the Depositor's rights under the Servicing Agreements and
the Mortgage
Loan Purchase Agreement (including any security interest created
thereby) and
(vi) the Servicer Custodial Accounts, the Master Servicer Custodial
Accounts and
the Certificate Account and such assets that are deposited therein
from time to
time and any investments thereof, together with any and all income,
proceeds and
payments with respect thereto. The Buy-Down Account shall not be
part of the
Trust Estate.
Trust REMIC: Either of the Upper-Tier REMIC or the Lower Tier
REMIC.
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: Each of the Class LT1A1, Class
LT1A2, Class LT1A3, Class LT1A11, Class LT1A12, Class LT1A14, Class
LT1A15,
Class LT1A17, Class LT1A18, Class LT1AIO, Class LT1APO, Class LT1B,
Class LT2A1,
Class LT2A2, Class LT2A3, Class LT2A4, Class LT2A5, Class LT2AIO,
Class LT2APO,
Class LT2B and Class LTAR Interests. Each such Uncertificated
Lower-Tier
interest shall represent a "regular interest" in the Lower-Tier
REMIC for
purposes of the REMIC Provisions and shall be held as an asset of
the Upper-Tier
REMIC. Each Uncertificated Lower-Tier Interest shall accrue
interest, if any, at
the related Uncertificated Lower-Tier REMIC Rate in effect from
time to time,
and shall be entitled to distributions of principal, if any,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
uncertificated principal balance as set forth in the Preliminary
Statement
hereto.
Uncertificated Lower-Tier REMIC Rate: With respect to each
Uncertificated Lower-Tier Interest, the rate set forth in the
Preliminary
Statement for the Lower-Tier REMIC.
Undercollateralized Amount: As defined in Section 5.02.
Undercollateralized Group: As defined in Section 5.02.
36
Uninsured Cause: Any cause of damage to a Mortgaged Property, the
cost
of the complete restoration of which is not fully reimbursable
under the hazard
insurance policies required to be maintained pursuant to Section
3.12.
Upper-Tier Certificate Sub-Account: The deemed sub-account of the
Certificate Account designated by the Securities Administrator
pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets
of which consist of the Uncertificated 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).
VA: The Department of Veterans Affairs, formerly known as the
Veterans
Administration, or any successor thereto.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date
of
determination, (a) 1% of all Voting Rights shall be allocated to
the Holders of
the Residual Certificates, (b) 1% of all Voting Rights shall be
allocated to the
Holders of the Class 30-IO Certificates, (c) 1% of all Voting
Rights shall be
allocated to the Holders of the Class 1-A-13 Certificates, (d) 1%
of all Voting
Rights shall be allocated to the Holders of the Class 1-A-20
Certificates and
(e) 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.
Washington Mutual: Washington Mutual Bank, FA.
Washington Mutual Servicing Agreement: Collectively, the Flow
Mortgage
Loan Purchase Agreement, dated as of March 1, 2003, by and between
BANA and
WMMSC, as amended by that certain Amendment No. 1, dated as of
December 1, 2003,
by and between BANA and WMMSC and the Memorandum of Sale, dated as
of September
2, 2004, by and between BANA and WMMSC, and the Mortgage Loan
Purchase and Sale
Agreement (Amended and Restated), dated as of July 1, 2003, by and
among
Washington Mutual, Washington Mutual Bank fsb, Washington Mutual
Bank and BANA
(as successor in interest to BAMCC), as amended by (i) the Master
Assignment,
Assumption and Recognition Agreement, dated as of July 1, 2004 (the
"Master
AAR"), by and among BANA (as successor in interest to BAMCC),
Washington Mutual,
Washington Mutual Bank fsb and Washington Mutual Bank, (ii) the
Servicing
Agreement (Amended and Restated), dated as of July 1, 2003, by and
between BANA
37
(as successor in interest to BAMCC) and Washington Mutual, as
amended by the
Master AAR, (iii) the Term Sheet, dated February 23, 2005, by and
among
Washington Mutual, Washington Mutual Bank fsb, Washington Mutual
Bank and BANA,
and (iv) the Assignment, Assumption and Recognition Agreement,
dated March 30,
2005, by and among BANA, the Depositor, the Trustee, Washington
Mutual,
Washington Mutual Bank and WMMSC.
Wells Fargo Bank: Wells Fargo Bank, N.A., in its capacity as
Servicer
under the Wells Fargo Servicing Agreement.
Wells Fargo Servicing Agreement: Collectively, the Master Mortgage
Loan Purchase Agreement, dated as of January 1, 2003, by and
between BANA (as
successor in interest to BAMCC) and Wells Fargo Bank (successor by
merger to
Wells Fargo Home Mortgage, Inc.), as amended by Amendment No. 1,
dated as of
October 1, 2003, and Amendment No. 2, dated as of May 10, 2004, the
Master
Seller's Warranties and Servicing Agreement, dated as of January 1,
2003, by and
between BANA (as successor in interest to BAMCC) and Wells Fargo
Bank (successor
by merger to Wells Fargo Home Mortgage, Inc.) (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, the Assignment and
Conveyance
Agreements, dated December 22, 2004 and January 27, 2005, the
Master Assignment,
Assumption and Recognition Agreement, dated as of July 1, 2004, by
and among
BANA, Wells Fargo Bank (successor by merger to Wells Fargo Home
Mortgage, Inc.),
and Wachovia Bank, National Association and the Assignment,
Assumption and
Recognition Agreement, dated March 30, 2005, by and among BANA, the
Depositor,
the Trustee and Wells Fargo Bank.
WMMSC: Washington Mutual Mortgage Securities Corp.
Section 1.02 Interest Calculations. All calculations of interest
will be
made on a 360-day year consisting of twelve (12) 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 and the related
Mortgage Files,
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
38
Depositor or any other Person in connection with the Mortgage Loans
or any
agreement or instrument relating thereto, except as specifically
set forth
herein. It is agreed and understood by the parties hereto that it
is not
intended that any mortgage loan be included in the Trust that is a
"High-Cost
Home Loan" as defined in any of (i) the New Jersey Home Ownership
Act effective
November 27, 2003, (ii) the New Mexico Home Loan Protection Act
effective
January 1, 2004, (iii) the Massachusetts Predatory Home Loan
Practices Act
effective November 7, 2004 or (iv) the Indiana Home Loan Practices
Act,
effective January 1, 2005.
(b) In connection with such transfer and assignment, the Depositor
has
delivered or caused to be delivered to the Trustee, or a Custodian
on behalf of
the Trustee, for the benefit of the Certificateholders, the
following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Wachovia
Bank,
National Association, as trustee for holders of Banc of America
Funding
Corporation Mortgage Pass-Through Certificates, Series 2005-2,
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, N.A.,
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 2005-2" (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, N.A., 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,
39
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 Cooperative Stock (other
than
with respect to any Mortgage Loan secured by Cooperative Stock
purchased by
the Seller from Wells Fargo Bank, N.A.), 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
40
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete
and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
provided, however, that on the Closing Date, with respect to item
(iii), if an
Assignment of Mortgage is required to be recorded as set forth
below, the
Depositor has delivered to the Trustee or a Custodian on behalf of
the Trustee,
as the case may be, a copy of such Assignment of Mortgage in blank
rather than
in the name of the Trustee and has caused the 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).
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), if
applicable,
satisfying the requirements of clause (ii), (iii), (iv) or (v)
above,
respectively, concurrently with the execution and delivery hereof
because such
document or documents have not been returned from the applicable
public
recording office in the case of clause (ii), (iii) or (iv) above,
or because the
title policy, if applicable, has not been delivered to any of the
related
Servicer, the Seller or the Depositor, as applicable, 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 a Custodian on
behalf of the
Trustee, as the case may be, in the case of clause (ii), (iii) or
(iv) above,
such Mortgage, such interim assignment or such assumption,
modification,
consolidation or extension agreement, as the case may be, with
evidence of
recording indicated thereon upon receipt thereof from the public
recording
office, but in no event shall any such delivery of any such
documents or
instruments be made later than one (1) 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 an Officer's Certificate to such effect to the Trustee.
The Depositor
shall forward or cause to be forwarded to the Trustee or a
Custodian, on behalf
of the Trustee, as the case may be, (1) from time to time
additional original
documents 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 a Custodian on the Trustee's behalf, as
the case may
be. In the event that the original Mortgage is not delivered and in
connection
with the payment in full of the related Mortgage Loan the public
recording
office requires the presentation of a "lost instruments affidavit
and indemnity"
or any equivalent document, because only a copy of the Mortgage can
be delivered
with the instrument of satisfaction or reconveyance, the Depositor
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
41
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 a 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).
With respect to each Mortgage Loan, as promptly as practicable
subsequent to such transfer and assignment, the Master Servicer
shall (except
for any Mortgage which has been
42
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.
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.
Exhibit J attached hereto sets forth the 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 J.
In the case of Mortgage Loans that have been prepaid in full as of
the
Closing Date, the Depositor, in lieu of delivering the above
documents to the
Trustee, or a Custodian on the Trustee's behalf, will cause the
applicable
Servicer to remit 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 such account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage
Loans. Subject to the provisions of the following paragraph, the
Trustee
declares that it, or a Custodian as its agent, will hold the
documents referred
to in Section 2.01 and the other documents delivered to it or a
Custodian as its
agent, as the case may be, constituting the Mortgage Files, and
that it will
hold such other assets as are included in the Trust Estate
delivered to it, in
trust for the exclusive use and benefit of all present and future
Certificateholders. Upon execution and delivery of this document,
the Trustee
shall deliver or cause a Custodian to deliver to the Depositor and
the Master
Servicer a certification in the form attached hereto as Exhibit K
(the "Initial
Certification") to the effect that, except as may be specified in a
list of
exceptions attached thereto, such Person has received the original
Mortgage Note
relating to each of the Mortgage Loans for which such Person is
acting as
Custodian listed on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement,
the
Trustee shall review, or cause a Custodian, on behalf of the
Trustee, to review,
the Mortgage Files in such Person's possession, and shall deliver,
no later than
30 days after completion of such review, to the Depositor and the
Master
Servicer a certification in the form attached hereto as Exhibit L
(the "Final
Certification") to the effect that, as to each Mortgage Loan for
which it is
43
acting as Custodian listed in the Mortgage Loan Schedule, except as
may be
specified in a list of exceptions attached to such Final
Certification, such
Mortgage File contains all of the items required to be delivered
pursuant to
Section 2.01(b). In performing any such review, the Trustee and any
Custodian
may conclusively rely on the purported genuineness of any such
document and any
signature thereon.
If, in the course of such review, the Trustee or a Custodian finds
any
document constituting a part of a Mortgage File which does not meet
the
requirements of Section 2.01 or is omitted from such Mortgage File,
the Trustee
shall promptly notify or shall cause a Custodian promptly to
notify, as the case
may be (and in no event more than 30 days after completion of the
review), the
Master Servicer and the Depositor. To the extent such defect
materially
adversely affects the value of the Mortgage Loan or the interests
of the
Certificateholders therein, the Depositor hereby covenants and
agrees that it
will promptly correct or cure such defect within 90 days from the
date it was so
notified of such defect and, if the Depositor does not correct or
cure such
defect within such period, the Depositor will either (a) substitute
for the
related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be
accomplished in the manner and subject to the conditions set forth
below or (b)
purchase such Mortgage Loan from the Trust at the Purchase Price
for such
Mortgage Loan; provided, however, that in no event shall such a
substitution
occur more than two (2) years from the Closing Date; provided,
further, that
such substitution or repurchase shall occur within 90 days of when
such defect
was discovered if such defect will cause the Mortgage Loan not to
be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code.
If the Depositor, the Master Servicer, the Securities
Administrator,
the Trustee or a 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 a
Custodian to promptly so notify the Master Servicer, the Seller,
such Servicer
and the Depositor of such breach and request that the applicable
Servicer or the
Seller, as applicable, cure such breach within 90 days of its
discovery or its
receipt of notice of such breach. If the Seller or the applicable
Servicer, as
the case may be, does not cure such 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 Purchase Price for such Mortgage Loan; provided, however, that
in no event
shall such a substitution occur more than two (2) 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.
44
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to this Section 2.02 shall be made more than
90 days after
the Closing Date unless the Depositor delivers to the Securities
Administrator
an Opinion of Counsel, which Opinion of Counsel shall not be at the
expense of
either the Trustee, the Securities Administrator or the Trust
Estate, addressed
to the Trustee and the Securities Administrator, to the effect that
such
substitution will not (i) result in the imposition of the tax on
"prohibited
transactions" on any Trust REMIC or contributions after the
Start-up Day, as
defined in Sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii)
cause any Trust REMIC to fail to qualify as a REMIC at any time
that any
Certificates are outstanding.
It is understood that the scope of the Trustee and a Custodian's
review of the Mortgage Files is limited solely to confirming that
the documents
listed in Section 2.01 have been received and further confirming
that any and
all documents delivered pursuant to Section 2.01 appear on their
face to have
been executed and relate to the applicable Mortgage Loans
identified in the
related Mortgage Loan Schedule based solely upon the review of
items (i) and
(xi) in the definition of Mortgage Loan Schedule. Neither the
Trustee nor any
Custodian shall have any responsibility for determining whether any
document is
valid and binding, whether the text of any assignment or
endorsement is in
proper or recordable form, whether any document has been recorded
in accordance
with the requirements of any applicable jurisdiction, or whether a
blanket
assignment is permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of a related 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 with respect to a
Mortgage Loan set
forth in clauses (k) or (o) of paragraph 3 or clauses (f) or (oo)
of paragraph 4
of the Mortgage Loan Purchase Agreement occurs as a result of a
violation of an
applicable predatory or abusive lending law, the Trustee shall
enforce the right
of the Trust to reimbursement by the Seller for all costs or
damages incurred by
the Trust as a result of the violation of such law (such amount,
the
"Reimbursement Amount"), but in the case of a breach of a
representation set
forth in clauses (k) or (o) of paragraph 3 of the Mortgage Loan
Purchase
Agreement, only to the extent the applicable 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 Mortgage Loan
Reimbursement
Amount, the obligation of a Servicer or the Seller to cure or to
repurchase (or
in the case of the Seller, to substitute for) 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.
With respect to the representations and warranties relating to the
Mortgage Loans set forth in the Mortgage Loan Purchase Agreement
that are made
to the best of the Seller's knowledge or as to which the Seller had
no
knowledge, if it is discovered by the Depositor, the 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
45
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.
It is understood and agreed that the representations and warranties
relating to the Mortgage Loans set forth in the Mortgage Loan
Purchase Agreement
shall survive delivery of the Mortgage Files to the Trustee or a
Custodian and
shall inure to the benefit of the Certificateholders
notwithstanding any
restrictive or qualified endorsement or assignment. It is
understood and agreed
that the obligations of the Seller set forth in this Section 2.02
to cure,
substitute for or repurchase a Mortgage Loan pursuant to the
Mortgage Loan
Purchase Agreement constitute the sole remedies available to the
Certificateholders and to the Trustee on their behalf respecting a
breach of the
representations and warranties contained in the Mortgage Loan
Purchase
Agreement.
The representations and warranties of 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 under any
circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver
to the Trustee (or a Custodian on behalf of the Trustee), for the
benefit of the
Certificateholders, the Mortgage Note, the Mortgage, the related
Assignment of
Mortgage (except for any Mortgage which has been recorded in the
name of MERS or
its designee), and such other documents and agreements as are
otherwise required
by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as
required by Section 2.01. No substitution is permitted to be made
in any
calendar month after the Determination Date for such month. Monthly
Payments due
with respect to any such Substitute Mortgage Loan in the month of
substitution
shall not be part of the Trust Estate and will be retained by the
Depositor. For
the month of substitution, distributions to Certificateholders will
include the
Monthly Payment due for such month on any Defective Mortgage Loan
for which the
Depositor has substituted a Substitute Mortgage Loan.
The 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
46
Servicer shall deliver the amended Mortgage Loan Schedule to the
Securities
Administrator, the Trustee and any Custodian. Upon such
substitution of a
Mortgage Loan by the Seller, each Substitute Mortgage Loan shall be
subject to
the terms of this Agreement in all respects, and the Seller shall
be deemed to
have made to the Trustee with respect to such Substitute Mortgage
Loan, as of
the date of substitution, the representations and warranties made
pursuant to
paragraph 4 of the Mortgage Loan Purchase Agreement. Upon 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
by the Trustee of a Request for Release, the Trustee shall release,
or shall
direct a Custodian to release, the Mortgage File relating to such
Defective
Mortgage Loan to the Seller and shall execute and deliver at the
Seller's
direction such instruments of transfer or assignment prepared by
the Seller,
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
substituted by the Seller in a Loan Group as of the date of
substitution is less
than the aggregate Stated Principal Balance of all such Defective
Mortgage Loans
in a Loan Group substituted by the Seller (after application of the
principal
portion of the Monthly Payments due in the month of substitution)
(the
"Substitution Adjustment Amount" for such Loan Group) plus an
amount equal to
the aggregate of any unreimbursed Advances with respect to such
Defective
Mortgage Loans shall be remitted by the Seller to the Master
Servicer for
deposit to the Master Servicer Custodial Account on or before the
18th day of
the month succeeding the calendar month during which the related
Mortgage Loan
is required to be purchased or replaced hereunder.
The Trustee shall retain or shall cause a Custodian to retain, as
applicable, possession and custody of each Mortgage File in
accordance with and
subject to the terms and conditions set forth herein. The Master
Servicer shall
cause to be promptly delivered to the Trustee or the Custodian on
behalf of the
Trustee, as the case may be, upon the execution or, in the case of
documents
requiring recording, receipt thereof, the originals of such other
documents or
instruments constituting the Mortgage File as come into the Master
Servicer's
possession from time to time.
The Trustee or a Custodian, on behalf of the Trustee, shall be
under
no duty or obligation (i) to inspect, review or examine any such
documents,
instruments, certificates or other papers to determine that they
are genuine,
enforceable, or appropriate for the represented purpose or that
they are other
than what they purport to be on their face or (ii) to determine
whether any
Mortgage File should include any of the documents specified in
Section
2.01(b)(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 a 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.
47
Section 2.03 Representations, Warranties and Covenants of the
Master
Servicer.
(a) 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 securing
a
Mortgage Loan 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
48
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 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 related 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 Securities
Administrator hereby designates the Classes of Senior Certificates
(other than
the Class 30-IO, Class 30-PO, Class 1-A-R and Class 1-A-LR
Certificates) and the
Classes of Subordinate Certificates and each Component as "regular
interests"
and the Class 1-A-R Certificate as the sole class of "residual
interest" in the
Upper-Tier REMIC for the purposes of Code Sections 860G(a)(1) and
860G(a)(2),
respectively. The Securities Administrator hereby further
designates the
Uncertificated Lower-Tier Interests as classes of "regular
interests" and the
Class 1-A-LR Certificate as the sole 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.
49
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 the
Lower-Tier REMIC is April 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares
that it holds
the Uncertificated 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, together with the
Uncertificated Lower-Tier
Interest, is hereby acknowledged, the Certificates in authorized
denominations
which 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 Servicing Procedures. 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 the
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.
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.
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
50
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 a Servicer under the Wells Fargo Servicing
Agreement, the
Trustee shall either act as successor Servicer or shall appoint a
successor
Servicer of the related Mortgage Loans under the Wells Fargo
Servicing
Agreement) or cause the Trustee to enter in to a new Servicing
Agreement with a
successor Servicer selected by the Master Servicer (except, in the
case of the
Wells Fargo Servicing Agreement, the Trustee shall select the
successor
Servicer); provided, however, it is understood and acknowledged by
the parties
hereto that there will be a period of transition (not to exceed 90
days) before
the actual servicing functions can be fully transferred to such
successor
Servicer. Such enforcement, including, without limitation, the
legal prosecution
of claims, termination of Servicing Agreements and the pursuit of
other
appropriate remedies, shall be in such form and carried out to such
an extent
and at such time as the Master Servicer, in its good faith business
judgment,
would require were it the owner of the related Mortgage Loans. The
Master
Servicer and Trustee, as applicable, shall pay the costs of such
enforcement at
its own expense, and shall be reimbursed therefor only (i) from a
general
recovery resulting from such enforcement to the extent, if any,
that such
recovery exceeds all amounts due in respect of the related Mortgage
Loan or (ii)
from a specific recovery of costs, expenses or attorneys fees
against the party
whom such enforcement is directed, provided that the Master
Servicer and the
Trustee, as applicable, shall not be required to prosecute or
defend any legal
action except to the extent that the Master Servicer or the
Trustee, as
applicable, shall have received reasonable indemnity for its costs
and expenses
in pursuing such action.
(c) To the extent that 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
51
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 (except in
the case of the termination of Wells Fargo Bank as a Servicer) or
the Trustee,
as applicable, shall be entitled to reimbursement of such costs and
expenses
from the Master Servicer Custodial Account; provided that if such
Servicing
Transfer Costs are ultimately reimbursed by the terminated
Servicer, then the
Master Servicer or the Trustee, as applicable, shall remit such
amounts that are
reimbursed by the terminated Servicer to the Master Servicer
Custodial Account.
(d) The Master Servicer shall require each Servicer to comply with
the
remittance requirements and other obligations set forth in the
related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer,
if any, that
it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Master
Servicer shall maintain, at its own expense, a blanket fidelity
bond and an
errors and omissions insurance policy, with broad coverage on all
officers,
employees or other persons involved in the performance of its
obligations as
Master Servicer hereunder. These policies must insure the Master
Servicer
against losses resulting from dishonest or fraudulent acts
committed by the
Master Servicer's personnel, any employees of outside firms that
provide data
processing services for the Master Servicer, and temporary contract
employees or
student interns. No provision of this Section 3.03 requiring such
fidelity bond
and errors and omissions insurance shall diminish or relieve the
Master Servicer
from its duties and obligations as set forth in this Agreement. The
minimum
coverage under any such bond and insurance policy shall be at least
equal to the
corresponding amounts required by FNMA in the FNMA Servicing Guide
or by FHLMC
in the FHLMC Sellers' & Servicers' Guide, as amended or
restated from time to
time, or in an amount as may be permitted to the Master Servicer by
express
waiver of FNMA or FHLMC. In the event that any such policy or bond
ceases to be
in effect, the Master Servicer shall obtain a comparable
replacement policy or
bond from an insurer or issuer, meeting the requirements set forth
above as of
the date of such replacement.
Section 3.04 Access to Certain Documentation. The Master Servicer
shall
provide, and the Master Servicer shall 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
52
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 the
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
3.11.
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.
In the event the Master Servicer or any successor master servicer
shall for any reason no longer be the Master Servicer hereunder
(including by
reason of an Event of Default),
53
the Trustee as trustee hereunder shall within 90 days of such time,
assume, if
it so elects, or shall appoint a successor Master Servicer to
assume, all of the
rights and obligations of the Master Servicer hereunder arising
thereafter. Any
such assumption shall be subject to Sections 7.02 and 8.05.
The predecessor Master Servicer at its expense shall, upon request
of
the Trustee, deliver to the assuming party all master servicing
documents and
records and an accounting of amounts collected or held by the
Master Servicer,
and shall transfer control of the Master Servicer Custodial Account
and any
investment accounts to the successor Master Servicer, and otherwise
use its best
efforts to effect the orderly and efficient transfer of its rights
and duties as
Master Servicer hereunder to the assuming party. The Trustee shall
be entitled
to be reimbursed from the predecessor Master Servicer (or the Trust
if the
predecessor Master Servicer is unable to fulfill such obligations)
for all
Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts. 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 loan
by loan basis,
into which accounts shall be deposited within 48 hours (or as of
such other time
specified in the related Servicing Agreement) of receipt all
collections of
principal and interest on any Mortgage Loan and all collections
with respect to
any REO Property received by a Servicer, including Principal
Prepayments,
Insurance Proceeds, Liquidation Proceeds, Recoveries and Advances
made from the
Servicer's own funds (less servicing compensation as permitted by
the applicable
Servicing Agreement in the case of any Servicer) and all other
amounts to be
deposited in the Servicer Custodial Account. The Master Servicer is
hereby
authorized to make withdrawals from and deposits to the related
Servicer
Custodial Account for purposes required or permitted by this
Agreement.
The Master Servicer shall also enforce the obligation of each
Servicer
to establish and maintain a Buy-Down Account in accordance with the
applicable
Servicing Agreement, with records to be kept with respect thereto
on a Mortgage
Loan by Mortgage Loan basis, into which accounts any Buy-Down Funds
shall be
deposited within 48 hours (or as of such other time specified in
the related
Servicing Agreement) of receipt thereof. The Master Servicer is
hereby
authorized to make withdrawals from and deposits to the related
Buy-Down Account
for purposes required or permitted by this Agreement. In addition,
the Master
Servicer shall enforce the obligation of each Servicer to withdraw
from the
Buy-Down Account and deposit in immediately available funds in the
Servicer
Custodial Account an amount which, when added to such Mortgagor's
payment, will
equal the full monthly payment due under the related Mortgage Note.
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 enforce the obligation of 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.
54
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Accounts 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 Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of three
sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00
a.m. 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.
(c) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be an Eligible Account and
which may be
deemed to 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.
(d) On a daily basis within one (1) Business Day of receipt (except
as
otherwise specifically provided herein), the Master Servicer shall
deposit or
cause to be deposited 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 or
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 3.08 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;
55
(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
the Trustee pursuant to Section 3.21) and any Compensating Interest
paid by
the applicable Servicer pursuant to the related Servicing
Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts and
all
Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to
Section
3.08; and
(x) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be
deposited, it may at any time withdraw such amount from the Master
Servicer
Custodial Account, any provision herein to the contrary
notwithstanding. All
funds required to be deposited in the Master Servicer Custodial
Accounts 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 3.11.
(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.
(f) Each institution at which the Certificate Account is maintained
shall invest the funds therein if directed in writing by the
Securities
Administrator in Permitted Investments that are obligations of the
institution
that maintains the Certificate Account, which shall mature on the
Distribution
Date and shall not be sold or disposed of prior to its maturity.
All such
Permitted Investments shall be made in the name of the Trustee, for
the benefit
of the Certificateholders. All income and gains net of any losses
realized since
the preceding Distribution Date from Permitted Investments of funds
in the
Certificate Account shall be for the benefit of the Securities
Administrator as
additional compensation and the amount of any losses
56
realized in the Certificate Account in respect of any such
Permitted Investments
shall promptly be deposited by the Securities Administrator from
its own funds
in the Certificate Account.
(g) The Master 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 attached
hereto as
Exhibit F.
(h) 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 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 3.11 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 and to pay 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, the Securities
Administrator Fee
and all amounts provided for under Section 9.11, other than the
amounts
provided for in the first sentence of Section 9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or
Trustee) for unreimbursed Advances made pursuant to the related
Servicing
Agreement (or in the case of itself or the Trustee, pursuant to
Section
3.21), such right of reimbursement pursuant to
57
this clause (iii) being limited first to amounts received on the
Mortgage
Loans serviced by such Servicer in the related Loan Group in
respect of
which any such Advance was made and then limited to amounts
received on all
the Mortgage Loans serviced by such Servicer (or, if applicable,
the Master
Servicer or the Trustee) in respect of which any such Advance was
made;
(iv) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right
of
reimbursement pursuant to this clause (iv) being limited first to
amounts
received on the Mortgage Loans in the same Loan Group as the
Mortgage
Loan(s) in respect of which such Nonrecoverable Advance was made
and then
limited to amounts received on all the Mortgage Loans serviced by
such
Servicer (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 or
3.15(f),
all amounts received thereon after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred by
either 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.
If the Master Servicer shall remit to the Securities Administrator
any amount
not required to be remitted, it may at any time direct the
Securities
Administrator to withdraw such amount from the Certificate Account,
any
provision herein to the contrary notwithstanding. Such direction
may be
accomplished by delivering an Officer's Certificate to the
Securities
Administrator which describes the amounts remitted in error to the
Securities
Administrator for deposit to the Certificate Account.
(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, the
Components 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 3.12 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
58
insurance provided for in this Section 3.12 shall be with insurers
meeting the
eligibility requirements set forth in the applicable Servicing
Agreement and
that no earthquake or other additional insurance is to be required
of any
Mortgagor or to be maintained on property acquired in respect of a
defaulted
loan, other than pursuant to such applicable laws and regulations
as shall at
any time be in force and as shall require such additional
insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
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 Sections 3.09
and 3.11. 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 3.13 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 3.14 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 3.15 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.
59
(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 the
name of the
Trust to be placed on the title to such REO Property and (ii)
ensure that the
title to such REO Property references this Agreement. The Master
Servicer shall,
to the extent provided in the 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. 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, but in any event within three years after the
acquisition by the
Servicer for the Trust (such period, the "REO Disposition Period")
unless (i)
the Servicer provides to the Trustee, the Master Servicer and the
Securities
Administrator an Opinion of Counsel to the effect that the holding
by the Trust
of such Mortgaged Property subsequent to three years after its
acquisition will
not result in the imposition of taxes on "prohibited transactions"
of the Trust
as defined in Section 860F of the Code or under the law of any
state in which
real property securing a Mortgage Loan owned by the Trust is
located or cause
any Trust REMIC to fail to qualify as a REMIC for federal income
tax purposes or
for state tax purposes under the laws of any state in which real
property
securing a Mortgage Loan owned by the Trust is located at any time
that any
Certificates are outstanding or (ii) 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.
(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
Advances (other than Servicing 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 Advances (other than Servicing 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.
60
Notwithstanding any other provision of this Agreement, the Master
Servicer shall not permit any Mortgaged Property acquired by the
Trust to 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,
(ii) result in the receipt by any REMIC of any "income from
non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or
any "net
income from foreclosure property" which is subject to taxation
under the REMIC
Provisions or (iii) subject any REMIC created hereunder to the
imposition of any
federal, state or local income taxes on the income earned from such
Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the
Master
Servicer or related Servicer, as applicable, has agreed to
indemnify and hold
harmless the Trust with respect to the imposition of any such
taxes.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Securities Administrator, as applicable, shall
comply with all
federal withholding requirements with respect to payments to
Certificateholders
of interest or original issue discount that the Master Servicer or
the
Securities Administrator reasonably believes are applicable under
the Code. The
consent of Certificateholders shall not be required for any such
withholding.
Without limiting the foregoing, the Master Servicer agrees that it
will not
withhold with respect to payments of interest or original issue
discount in the
case of a Certificateholder that has furnished or caused to be
furnished an
effective Form W-8 or an acceptable substitute form or a successor
form and who
is not a "10 percent shareholder" within the meaning of Code
Section
871(h)(3)(B) or a "controlled foreign corporation" described in
Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the
event the
Securities Administrator withholds any amount from interest or
original issue
discount payments or advances thereof to any Certificateholder
pursuant to
federal withholding requirements, the Securities Administrator
shall indicate
the amount withheld to such Certificateholder.
(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 3.16 and the Trustee or the
Custodian shall
promptly release to the Depositor the Mortgage File relating to the
Mortgage
Loan being repurchased.
Section 3.16 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 related Custodian) by delivering, or causing to be
delivered, two
copies (one of which will be returned to the related Servicer with
the Mortgage
File) of a Request for Release (which may be delivered in an
electronic format
acceptable to the Trustee and the Master
61
Servicer or the related Servicer). Upon receipt of such request,
the Trustee or
the related Custodian, as applicable, shall within seven (7)
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
relating to the
Mortgage Loan, 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 of the Mortgage Loan.
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 Primary Mortgage Insurance Policy, 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
related
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 (7) 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 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 3.17 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 (or a Custodian on behalf of 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.
62
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
Certificate 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, and shall
enforce any
requirement under the related Servicing Agreement that the related
Servicer
shall not, knowingly create, incur or subject any Mortgage File or
any funds
that are deposited in any Master Servicer Custodial Account, any
Servicer
Custodial Account, the Certificate Account or any Escrow Account,
or any funds
that otherwise are or may become due or payable to the Trustee for
the benefit
of the Certificateholders, to any claim, lien, security interest,
judgment,
levy, writ of attachment or other encumbrance created by the Master
Servicer or
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 3.18 Master Servicer Compensation. As compensation for its
services
hereunder, the Master Servicer shall be entitled to a fee in an
amount agreed
upon between the Master Servicer and the Securities Administrator,
payable by
the Securities Administrator out of its own funds and not out of
any funds of
the Trust Estate. The Master Servicer shall also be entitled to
additional
compensation in the form of the Master Servicer Custodial Account
Reinvestment
Income. 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 3.19 Annual Statement as to Compliance. The Master Servicer
shall
deliver to the Securities Administrator (and the Securities
Administrator will
forward to the Trustee and each Rating Agency), no later than March
15 following
the end of each calendar year commencing with March 2006, an
Officer's
Certificate, signed by two officers of the Master Servicer,
stating, as to the
signers thereof, that (a) a review of the activities of the Master
Servicer
during the preceding calendar year and of the performance of the
Master Servicer
under this Agreement or similar agreements has been made under such
officer's
supervision, and (b) to the best of such officer's knowledge, based
on such
review, the Master Servicer has fulfilled all its obligations under
this
Agreement throughout such year, or, if there has been a default in
the
fulfillment of any such obligation, specifying each such default
known to such
officer and the nature and status thereof.
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 3.20 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
63
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 3.21 Advances. The Master Servicer shall enforce the
obligations of
each Servicer to make a Periodic Advance in accordance with the
applicable
Servicing Agreement. A Servicer shall be entitled to be reimbursed
from the
Master Servicer Custodial Account for all Advances of its own funds
made
pursuant to the related Servicing Agreement. Based upon information
set forth in
the servicer reports, the Master Servicer shall inform the
Securities
Administrator of the amount of the Periodic Advance to be made by a
Servicer
with respect to each Loan Group on each applicable Advance Date no
later than
the related 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
set forth in
this paragraph.
Section 3.22 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. Notwithstanding the previous sentence, the
Depositor shall
file the Monthly Form 8-K in connection with the filing of this
Agreement.
(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
64
Form 10-K shall include as exhibits the Master Servicer's and each
Servicer's
annual statement of compliance described under Section 3.19 and the
accountant's
reports referenced under Section 3.20, in each case, to the extent
they have
been timely delivered to the Securities Administrator. If they are
not so timely
delivered, the Securities Administrator shall file an amended Form
10-K
including such documents as exhibits reasonably promptly after they
are
delivered to the Securities Administrator. The Securities
Administrator shall
have no liability with respect to any failure to properly prepare
or file such
periodic reports resulting from or relating to the Securities
Administrator's
inability or failure to obtain any information not resulting from
its own
negligence, willful misconduct or bad faith. The Form 10-K shall
also include a
certification in the form attached hereto as Exhibit M (the
"Certification"),
which shall be signed by a senior officer of the Master Servicer in
charge of
the master 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 3.22, to be conducted or allocated in a
different
manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and
deliver to the
Master Servicer a certification (in the form attached hereto as
Exhibit N) for
the benefit of the Master Servicer and its officers, directors and
affiliates
(provided, however, that the Securities Administrator shall not
undertake an
analysis of any accountants' 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
3.22(c), any
breach by the Securities Administrator or any of its officers,
directors, agents
or affiliates of its obligations under this Section 3.22(c) or any
material
misstatements or omission contained in the certification delivered
pursuant to
this Section 3.22(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 3.22(c),
any material
misstatement or omission contained in the certification delivered
pursuant to
this Section 3.22(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
65
obligations under Sections 3.19 and 3.20 in order to perform their
respective
obligations under this Section 3.22.
(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 based
solely on the information provided by the Servicers (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 delivered
by the Master
Servicer 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.
66
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, 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 Section
3.11(a) and shall
pay such funds to itself and the Trustee, as applicable, and (2)
based solely on
the information contained in the Master Servicer's Certificate, the
Pool
Distribution Amount (after the payment of the Servicing Fees and
the Securities
Administrator Fees for such Mortgage Loans 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) for each Loan
Group, and
shall apply such funds first, to distributions in respect of the
Uncertificated
Lower-Tier Interests as specified in this Section 5.02(a) and to
the Class
1-A-LR Certificate, and then to distributions to the Certificates
in the
following order of priority and to the extent of such funds, paying
Group 1
solely from the Pool Distribution Amount for Loan Group 1, paying
Group 2 solely
from the Pool Distribution Amount for Loan Group 2 and paying the
Subordinate
Certificates (including amounts used to pay Class PO Deferred
Amounts) from the
combined Pool Distribution Amounts for both Loan Groups, in the
following order
of priority and to the extent of such funds:
(i) to each Class of Senior Certificates and the Class IO Component
of
such Group, an amount allocable to interest equal to the Interest
Distribution Amount for such Class or Component and any shortfall
being
allocated among such Classes or Component in proportion to the
amount of
the Interest Distribution Amount that would have been distributed
in the
absence of such shortfall;
(ii) concurrently, to each Class of Senior Certificates and the
applicable Class PO Component of such Group, pro rata, based on
their
Senior Principal Distribution Amount and PO Principal Amount,
respectively,
(A) to the Senior Certificates of such Group, in an aggregate
amount up to
the Senior Principal Distribution Amount for such Group, such
distribution
to be allocated among such Classes in accordance with Section
5.02(b) and
(B) to the Class PO Component of such Group in an aggregate amount
up to
the applicable PO Principal Amount for such Group;
(iii) to the applicable Class PO Component of such Group, any
applicable Class PO Deferred Amount (after giving effect to the
distribution to such Class PO Component of the Class PO Recovery
for the
Related Loan Group), up to the Subordinate Principal Distribution
Amount
for both Loan Groups from amounts otherwise distributable, first to
the
Class B-6 Certificates 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
67
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 Amount 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 Amount 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 Amount 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 Amount 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 Amount pursuant to
clause
(iii) above until the Class Certificate Balance thereof has been
reduced to zero;
68
(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 Amount pursuant to
clause
(iii) above until the Class Certificate Balance thereof has been
reduced to zero;
(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
(neither of which shall be distributed in respect of such
certificates,
Class Certificate Balance or interest accrued on its Pass-Through
Rate).
No Class of Certificates or Component will be entitled to any
distributions with respect to the amount payable pursuant to clause
(ii) of the
definition of "Interest Distribution Amount" or "Component Interest
Distribution
Amount" after its Class Certificate Balance or Notional Amount, as
the case may
be, has been reduced to zero.
For any Group and on any Distribution Date, amounts distributed in
respect of the Class PO Deferred Amounts (including the
distribution of the
Class PO Recoveries) will not reduce the Component Balance of the
applicable
Class PO Component.
All distributions in respect of the Interest Distribution Amount
for a
Class or the Component Interest Distribution Amount for a Class IO
Component
will be applied first with respect to the amount payable pursuant
to clause (i)
of the definition of "Interest Distribution Amounts" or "Component
Interest
Distribution Amount," as applicable, and second with respect to the
amount
payable pursuant to clause (ii) of such definitions.
On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amount sequentially to each Class 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 for the applicable Loan
Group.
With respect to each Distribution Date, each Uncertificated
Lower-Tier
Interest (other than the Class LT1AIO and Class LT2AIO Interests)
shall receive
distributions in respect of principal in an amount equal to the
amount of
principal distributed to its respective Corresponding Upper-Tier
Class, Classes
or Component as provided herein. On each Distribution Date, each
Uncertificated
Lower-Tier Interest (other than the Class LT1APO and Class LT2APO
Interests)
shall receive distributions in respect of interest at its
Lower-Tier REMIC Rate
as applied to its principal or notional balance in an amount that
will be equal
to the Interest Accrual Amounts and Unpaid Interest Shortfalls, as
the case may
be, in respect of its Corresponding Upper-Tier Class, Classes or
Component, in
each case 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
69
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, Classes or Component 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 its respective
Corresponding
Upper-Tier Class, Classes or Component as provided above.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest shall equal the Class Certificate Balance of
the respective
Corresponding Upper-Tier Class, Classes or Component. The initial
principal
balance of each Uncertificated Lower-Tier Interest equals the
Original Principal
Balances of the respective Corresponding Upper-Tier Class, Classes
or Component.
Any distributions of principal made to the Uncertificated
Lower-Tier Interests
pursuant to this section shall be made from the Group 1 Mortgage
Loans to the
Uncertificated Lower-Tier Interests beginning with "LT1A" or "LT1B"
and from the
Group 2 Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with
"LT2A" or "LT2B." In addition, any Realized Losses from the Group 1
Mortgage
Loans shall be allocated to the Uncertificated Lower-Tier Interests
beginning
with "LT1A" or "LT1B" and any Realized Losses from the Group 2
Mortgage Loans
shall be allocated to the Uncertificated Lower-Tier Interests
beginning with
"LT2A" or "LT2B." Any Recoveries shall be allocated in the same
manner as stated
in the prior sentence.
It is the intention of this section that as of any date, (i) the
principal balance of the Class LT1APO Interest and the LT2APO
Interests will be
equal to the principal balance of the Class 1-PO Component and
Class 2-PO
Component, respectively, (ii) the interest distributed in respect
of the LT1AIO
Interest and the LT2AIO Interest will equal the interest
distributed in respect
of the Class 1-IO Component and the Class 2-IO Component,
respectively, (iii)
the interest and principal distributed on each of the other
Uncertificated
Lower-Tier Interests will be equal to the interest and principal
distributed on
each related Corresponding Class, Classes or Components. In
addition, it is the
intention of this section that as of any date (i) the aggregate
principal
balance of the Uncertificated Lower-Tier Interests beginning with
"LT1A" and
"LT1B" shall equal the aggregate Stated Principal Balance of the
Group 1
Mortgage Loans less the outstanding balance of the Residual
Certificates and
(ii) the aggregate principal balance of the Uncertificated
Lower-Tier Interests
beginning with "LT2A" and "LT2B" shall equal the aggregate Stated
Principal
Balance of the Group 2 Mortgage Loans. Any inconsistencies in
respect of
distributions to the Uncertificated Lower-Tier Interests and from
the Lower-Tier
Interests to the Regular Certificates, the Components and the
Residual
Certificates shall be resolved in a manner that complies with the
intentions of
this paragraph.
Distributions of principal and interest in respect of the Class
1-A-LR
Certificates shall be deemed to be made from the Lower-Tier REMIC
to such
certificates.
(b) (i) On each Distribution Date prior to the Senior Credit
Support
Depletion Date, the amount distributable to the Group 1 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;
70
second, concurrently, to the Class 1-A-1 and Class 1-A-12
Certificates, pro rata, up to the Priority Amount for such
Distribution Date;
third, concurrently, as follows:
(A)
50%, as follows:
(1)
10.7035439434% to the Class 1-A-11 Certificates, until their
Class Certificate Balance has been reduced to zero; and
(2)
89.296460566%, sequentially, as follows:
a)
concurrently, as follows:
(i)
68.9698829277%, to the Class 1-A-2 Certificates, until
their Class Certificate Balance has been reduced to
zero, and
(ii) 31.0301170723%, pro rata, to the Class 1-A-14 and Class
1-A-15 Certificates, until their Class Certificate
Balances have been reduced to zero; and
b)
to the Class 1-A-18 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(B)
50% to the Class 1-A-17 Certificates, until their Class
Certificate Balance has been reduced to zero;
fourth, concurrently, as follows:
a)
29.6094513369% to the Class 1-A-16 Certificates, until their
Class Certificate Balance has been reduced to zero;
b)
33.9650016285%, sequentially, to the Class 1-A-3, Class
1-A-4, Class 1-A-5, Class 1-A-6 and Class 1-A-7
Certificates, in that order, until their Class Certificate
Balances have been reduced to zero;
c)
29.6094513369%, sequentially, to the Class 1-A-8, Class
1-A-9 and Class 1-A-10 Certificates, in that order, until
their Class Certificate Balances have been reduced to zero;
and
d)
6.8160956977% to the Class 1-A-19 Certificates, until their
Class Certificate Balance has been reduced to zero; and
fifth, concurrently, to the Class 1-A-1 and Class 1-A-12
Certificates,
pro rata until their Class Certificate Balance has been reduced to
zero.
71
(ii) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior
Certificates
pursuant to Section 5.02(a)(ii)(A) for such Distribution Date, will
be
distributed, sequentially, as follows:
first, to the Class 2-A-1 Certificates, up to the Priority Amount
for
such Distribution Date;
second, to the Class 2-A-2 Certificates, until their Class
Certificate
Balance has been reduced to zero;
third, concurrently, to the Class 2-A-3, Class 2-A-4 and Class
2-A-5
Certificates, pro rata, until their Class Certificate Balances have
been reduced
to zero; and
fourth, to the Class 2-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 with respect to a Loan
Group available
to be distributed as principal of the Senior Certificates of the
Related Group
(other than the Class 30-PO Certificates) shall be distributed,
concurrently, as
principal of such Classes of Senior Certificates, pro rata, on the
basis of
their respective Class Certificate Balances immediately prior to
that
Distribution Date, until the Class Certificate Balances thereof are
reduced to
zero.
The Class 1-A-13, Class 1-A-20 and Class 30-IO Certificates are
Interest-Only Certificates and are not entitled to distributions in
respect of
principal.
Notwithstanding the foregoing, on each Distribution Date prior to
the
Senior Credit Support Depletion Date but on or after the date on
which the
aggregate Class Certificate Balance of the Senior Certificates (but
not the
Class PO Component) of a Group has been reduced to zero, amounts
otherwise
distributable as principal payments on the Subordinate Certificates
will be paid
as principal to the Classes of Senior Certificates of the other
Group (but not
the Class PO Component of such Group) in accordance with the
priorities set
forth for the applicable Group in (b) (i) or (ii) above, provided
that on such
Distribution Date (a) the Aggregate Subordinate Percentage for such
Distribution
Date is less than twice the initial Aggregate Subordinate
Percentage or (b) 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 equal to or greater than 50%. In addition, if on
any
Distribution Date the aggregate Class Certificate Balance of the
Senior
Certificates of a Group (but not the Class PO Component of such
Group) is
greater than the Adjusted Pool Amount (Non-PO Portion) of related
Loan Group
(any such Group, the "Undercollateralized Group" and any such
excess, the
"Undercollateralized Amount"), all amounts otherwise distributable
as principal
on the Subordinate Certificates pursuant to 5.02(a)(iv)(L), (J),
(H), (F), (D)
and (B), in that order, will be paid as principal to the Senior
Certificates
(but not the Class PO Component) of the Undercollateralized Group
in accordance
72
with the priorities set forth for the applicable Group above under
(b)(i) or
(ii) until the aggregate Class Certificate Balance of the Senior
Certificates of
the Undercollateralized Group (but not the Class PO Component)
equals the
Adjusted Pool Amount (Non-PO Portion) of the Related Loan Group.
Also, the
amount of any Class Unpaid Interest Shortfalls with respect to the
Undercollateralized Group (including any Class Unpaid Interest
Shortfalls for
such Distribution Date) will be paid to the Undercollateralized
Group pursuant
to clause 5.02(a)(i) prior to the payment of any
Undercollateralized Amount from
amounts otherwise distributable as principal on the Subordinate
Certificates
pursuant to 5.02(a)(iv)(L), (J), (H), (F), (D) and (B), in that
order: such
amount will be paid to the Senior Certificates and Class IO
Component of such
Undercollateralized Group in accordance with the priorities set
forth in Section
5.02(a)(i) up to their Interest Distribution Amounts or Component
Interest
Distribution Amount for such Distribution Date.
The Class PO Deferred Amounts for the Class PO Components will be
paid
from amounts otherwise distributable as principal on the
Subordinate
Certificates before any payments are made pursuant to the preceding
paragraph.
(c) On each Distribution Date, Accrued Certificate Interest for
each
Class of Certificates (other than the Class 30-PO Certificates) for
such
Distribution Date shall be reduced by such Class' pro rata share,
based on such
Class' Interest Distribution Amount for such Distribution Date,
without taking
into account the allocation made by this Section 5.02(c), of an
amount equal to
the sum 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 any
Mortgage
Loans during the related Prior Period.
(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 that have a higher numerical Class designation than
such Class,
divided by (ii) the aggregate Pool Stated Principal Balance (Non-PO
Portion) of
the Loan Groups immediately prior to such Distribution Date (for
each Class, 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 of Subordinate
Certificates 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 are
reduced to
zero, notwithstanding the previous sentence, any funds remaining
will be
distributed sequentially to the Subordinate Certificates that are
Restricted
Classes in order of their respective numerical Class designations
(beginning
with the Class of Subordinate Certificates that is a Restricted
Class then
outstanding with the lowest numerical Class designation).
Section 5.03 Allocation of Losses.
(a) No later than five (5) Business Days
